Imágenes de páginas

Another witness for plaintiff states that becuse. Now, I will consider whether they show was present, and saw the train approach the the plaintiff guilty of contributory negligence station. Using his own words, be says: "I to such a degree as to preclude his right to rethink the train checked up a little, west of tbe cover. A review of authorities will first be platform, but near it. I do not tbink the train necessary. stopped entirely at the station this trip. It was decided by the Supreme Court of I think the train came nearer stopping that day Tennessee, in 1887, that the act of a passenger than it usually does to put off the mail. in alighting from a train wbile in slow moAbout the time the locomotive got opposite the lion, who sustained injuries in consequence, platform the train was moving very slow." bas been, in the courts of several of the States,

Another of plaintiff's witnesses states, using treated as negligence per se, and no damages his own language: “I was at Doyline Station can be recovered; but, says the court' (86 the day that Mr. Walker got bis leg broke. I Tenn. (2 Pickle) 348), "this is contrary to the was in about fifteen steps of bim when it bap- current of judicial opinion, in this country at pened. I saw bim when he went to step off least. The true rule deducible therefrom is the train, and it appeared to me that, as be did stated in 2 Wood, Railway Law, 1130, to be 80, the train got faster, and jerked bis feet that 'in all cases the question is one of fact from under bim. Just before and at the time whether, in view of the particular circum. he attempted to get off the train was going slow, stances, the passenger was guilty of negligence and just as be went to step it appeared to me in atempting to leave the train while it was in that it jerked his feet from under him. I do motion. In this, as in all other matters where not know that it was going any slower than the safety of passengers is concerned, the comwben they checked up for the 'mail. I bave pany owes a duty to the passenger to act with never seen anyone get off there when the train proper care and caution; and is the motion of was running as fast as it was then, except Mr. the train is not entirely stopped, and the passenWalker. I bave frequently got on the train ger is expressly or impliedly invited to leave the

when it was going as fast as that." train while mooing at a slow rate of speed, he has On the part of ile defendant there is not a a right to presume that it is sofe for him to do syllable of positive testimony io opposition to so. . . If the train is moving slowly, and these empbatic statements. The conductor there is no obvious danger in getting off, it canwas sworn, and simply stated that the aver. not be said to be negligence per se to make the age rate of running is about twenty-four and attempt, especially if the passenger is directed one balf miles an hour on the road from Mon- to do so; and it would be wrong to inroe to Shreveport, This was true in October, struct the jury that such an attempt per se con1896. . . . The average rate of speed, when stituted contributory negligence.' Id. 1129. passing flag stations, when the train does not | ‘As a rule, it may be said that where a pressen. stop, is between eight and twelve miles an hour, gér, by the wrongful act of the company, is comfor the exchange of mails, as above stated." pelled to choose between leaving the cars while they This witness does not profess to have any are moving slowly, or submitting to the incon knowledge of the occurrence, because he says: venience of being carried by the s'ation where ho “I learned the day afterwards that Mr. Walker desires to stop, the company is liable for the conjumped off the train, avd bad broken his leg.” sequences of the choice, provider it is not everHe subsequently volunteered the statement : cised negligently or unreasonably. Id. 1131, “I judge that the train was running at about 1132,"-citing Thompson, Carr. 227–267. See ten miles an hour on that day, when it passed also Plopper v. New York Cent. & H. R. R. Co. Doyline, because it usually passes at that speed 13 Hun, 625; Kenting v. Neno York Cent. & H. when only delivering the mail.”

R. R. Co. 49 N. Y. 673; and Taber v. Delaware, The engineer testified that he was on this L. & W. R. Co. 71 N. Y. 489. road, running a passenger engine and train, in "The earlier cases,” says the Tennessee October, 1886, but that he bad “no recollection court, “establish the rule that leaving a train of the accident that resulted in the injury of (while) in motion was such negligence as deMr. Walker." Said he did not “recollect who feated the rigbt of recovery, unless done to was engineer on the passenger train going east, avoid danger of remaining on board; and this on the 16th of October, 1886.”.

is still stated as the 'general rule' in many au. The defendant's third witness was the porter, thorities. 2 Wood, Railway Law, 1126; Thomp who states, using his own words: “I recollect son, Carr, 267. the time that Mr. Walker was said to bave been “But the rule we have laid down is the modern liurt, at or near Doyline Station.". He says one, and formulated from the many exceptions, further: "I remember that on that day no sig. I and this modification bas been before recog. nal was given to stop at Doyline, and I did not nized by this court. East Tennessee, V. & d. leave my seat."

R. Co. v. Conner, 15 Lea, 25%;" Louisville & N. onsequently it is established by the concur. R. Co. v. Stacker, 86 Tenn. (2 Pickle) 345. ring statements of defendant's three witnesses, It was decided by the Supreme Court of all of them trainmen, that they knew nothing Georgia, in a recent case, that "ibe railroad was of the occurrence, and could testify to nothing bound to put him (a passenger off, -- to,stop its adverse to the testimony of plaintiff's witnesses. train for this purpose. This it failed to do, and Of course the mere theoretical conjecture of the it was not want of ordinary care in the passenengineer, as to the speed of the train, amounts per to use the only means to get off the course to nothing at all.

of the defendant permitted.' Georgia R. & The recital of the foregoing facts is sufficient Bkg. Co. v. McCurdy, 45 Ga. 289. See also to take this case out of the principle announced Filer v. Nero York Cent. R. Co. 49 N. Y. 47; in Pennsylvania R. Co. v. Aspell. Tbey plain Loyd v. Hannibal & St. J. R. Co. 63 Mo. 509 ly show the defendant in fault, and without ex- | Nlinois Cent. R. Co. v. Able, 59 Ill. 131.

The proper limitation of that rule is stated in W. R. CO. 64 Wis. 228; St. Louis, I. M. & 8. R. Wood's Railway Law thus: “But, generally, Co. v. Person, 49 Ark. 182: St. Louis, 1. M. & do recovery can be bad if the cars are under 8. R. Co. v. White, 48 Ark. 495; Louisville, N. sucb motion as to render it obviously danger. 0. & T. R. Co. v Mask, 64 Miss. 738; Hunter ous for a person to attempt to leave them,”-p. v. Cooperstown & 8. V. R. Co. 112 N. Y. 371, 1136, citing Jeffersonville R. Co. v. Hendricks, 2 L. R. A. 832, and many other cases. 26 ind. 2:28; Pennsylvania R. Co. v. Aspell, 23 ln Solomon v. Manhattan R. Co. 103 N. Y. Pa. 147; Damont v. New Orleans & (. R. Co. 437, 4 Cent. Rep. 775, it was held that, to 9 La. Ann. 441; Gavett v. Manchester & L. R. justify a recovery, the act of the defendant Co. 15 Gray, 601.

must put the passenger to a sudden election beTue author then proceeds: "And, under tween altern-live danger or inconvenience, or such circumstances, it is not sufficient to charge create some situation "wbich interfered, to the company that tbe conductor advised the some extent, with bis free agency, and was passengers to make the attempt. It is the duty calculated to divert bis attention from the dan. of the passenger to exercise bis own judgment, ger, and create a confidence that the attempt and, if the danger was so great that a man of could be made in safety." oruinary prudence would not have attempted Tbis priuciple has been frequently main. it, he is guilty of such contributory negligence tained and upheld by different courts, and as bars a recovery,"<citing Chica'o & A. R. notably in the following, viz.: South CovingCo. v. liandolph, 53 [1], 510; Chicago, B. & l. ton & C. Street R. Co. v. Ware, 84 Ky. 267; R. Cn. V. Ulzzard, 26 III. 373.

Collins v. Davidson, 19 Fed. Rep. E3; Haj v. "When the danger is apparent, it must not Minneapolis & St. L. R. Co, 14 Fed. Rep. 558; be hraved simply because the company is bound Lawrence v. Green, 70 Cal. 417; Chicaro & N. to stop the train, or because it is very important E. R. Co. v. Miller, 46 Mich. 532; Cincinnati, that cue c.assenger should stop at that particu. H. & 1. R. Co. v. Carpar, 112 Ind. 26, 11 West. lar tjune. *

Wood, Railway Law, 1136. Rep. 221; Stewart v. Boston & P. R. Corp. 146 But the rule is stated concisely to be: “But, Mass. 605, 6 New Eng. Rep. 273; Delu are & in all cases, the question of liability must nec. 11. Canal Co. v. Webster (P1) 4 Cent. Rep. 638; essarily be determined by the facts and circum- St. Louis, 1. M. & S. R. Co. v. Person, 49 Ark. stances of tais case, --whether the train was in 182. rapid notion, and wbether the real dan- The rule was again formulated thus, in ger was obviou." 2 Wood, Railway Law, Strand v. Chicago e W. M. R. Co. 64 Mich. 1137.

216,7 West. Rep. 470: "In order to make him "But whare a railway company fails to bring so (negligent], he must, as in all other cases, its truir. io * full st pat u station, it will be lia- decide upon facts as they appear, as a man of ble in dusoges for injuries sustained by a pas ordinary care would do under the same cirarger in aitem ting to get off, if, under all the cumstances. It is not right of any passenger erreur-tonces, si was prudent for him to make to run evident risks to bis safety, but the rule th alterapie." II. 1148, 1149; Price v. St. Louis, of prudence binding on himn must be that hi O. A. R. Co. 72 Mo. 414; Central R. & which, unler just such circumstances, would

tes. to v. Letcher, 69 Ala. 106; Chicago, R. 1. restrain all med of ordinary prudence. If the «c F. P.. Co. v. Ilo:18t in, 95 U. S. 697 (24 L. ed. mind of an ordinarily prudent man would be 613!, Nienphis & O. R. Co. v. Copeland, 61 impressed with the belief of danger, he has no Ali. 3.6.

right to iucur the danger. If the danger would Thie italics in preceding quotations are those not be apparent, he is not negligent in acting on of the wriier.

that assumption." Abbott states the rule thus: “Alighting To ibis list might be added an almost indei. from the car at an unsuitable place is not con. pite number and variety of cases to the same tributive negligence, if the train is not stopped effect. But it is quite sullicient to say tbat, on at a suisable one, and if there is not sucb ap- the faith of those quoted and ciiel, the followpareut danger as would deler a person of ordi- ing principles are firmly established on AmeriDary pru ience.” 2 Abbott, Dig. Corp. 598. can jurisprudence, viz.:

Beacb announces the rule thus: “Ás in the (1) That it is not per se negligence on the part case of boarding a railway train in motion, so of a passenger to alight from a moving train. it is he! I not coutributory negligence per se for (2) The questioù is one of fact whether, un. a passenger to jump off a train which is mov- der the particular circumstances, the passenter ing. Galveston, H. & S. A. R. Co. v. Smith, was guilty of negligence in attempting to thus 5. Tex. 406; Loyd v. Hannibal & St. J. R. Co. alight; and, if il appear that be was ex5.3 Dio. 509; Pennsylvania R. Co. v. Kilgore, 32 pressly or impliedly invited to leave the train Pa. 292; Brooks v. Borton & M. R. Co. 135 | ivbile moving at a slow rate of speed, he has dlase. 21. Whether or not a railway company the right to presume that it is safe for him to shxjl be held liable in damages for injuries sus do so. tained by a passenger in attempting to leave (3) When a passenger, by the wrongful act one of its trains while in motion will depend of a railroad company, is compelled to choose urop whether, under all the circumstances, it between leaving ibe cars while tbey are mov. was rrulent for bim to make the attempt.” | ing slowly, or subinitting to the inconvenience Beach, Contrib. Neg. p. 157, 53, citing the of being carried by the siation wbere be desires íbilowing authorities, viz.: Price v. St. Louis, to stop, it is liable for the consequences of the h. C. & N. R. Co. 72 Mo. 414; Dos8 v, Missouri, choice, proviiled it is pot exercised negligently K. & T. R. Co. 59 Mo. 27; Parish v. Euen, 62 or unreasonably, and it is not want of ordinary Wis. 272; Langhof v. Milwaukee & P. du C. care in the passenger to use tbe only means to R. Co. 19 Wis. 449: Curry v. Chicago & N. w. get off the course of the defendani permitted. R. Co. 43 Wis. 636; Leavitt v. Chicago & N. (4) To justily a recovery, we act of the cosa. pany must put the passenger to a sudden elec- | from defendant's train while in motion did not tion between alternate danger or incouvenience, constitute his act coutributory negligence, beor create some situation wbich interfered, to cause it was voluntary and without an iu vitasome extent, with bis free agency, and wns cal- tion, express or implied. culated to divert bis attention from the danger, The act of the company put the plaintiff to and create a confidence that the attempt could a sudden election belween alternative danger be made in safety.

or inconvenience, and thus crealed a situation (6) It is the duty of the passenger to exercise well calculated to divert bis attention from that his own judgment, and, if the danger was so danger, and inspired a confidence in the safety great that a man of ordinary prudence would of bis attempt io alight therefrom. The dan. pot have attempted it, he is guilty of such con- ger does not appear to bave been either appartributory negligence as bars a recovery; for, ent or imminent. I think tbe verdict of the when the danger is apparent, it must not be jury and the judgment of tbe court should braved simply because the company is bound bave been affirmed. to stop the train, or because it is very important As was appropriately said in Williams v. that the passenger should stop at å particular Pullman Pa'ace Car Co. 40 La. Ann. 420, in place; but, in all cases, the question of liability deciding a kindred question, “lbis court should must depend upon whether the train was in seek to place its rulings and jurisprudence in rapid motion and the danger obvious,-the line and in harmony with those of the Supreme question being whether, under the circum- Court of the United States, and of the courts siances it was prudent in the passenger 10 of last resort of our sister States, whenever make the attempt to alight, and that depends those decisions do not militate against the upon whether the danger was imminent and principles of our special and exceptional system obvious.

of laws;" and it is in this spirit I bave prepared I therefore respectfully submit that the mere this elaborate dissent, and in the bope of atlainfact of the plaintiff baving attempted to alight ling this end that I place my views on record.


Richard B. ODOM et al.

This decision was affirmed by the court, and 0.

both parties thereupon appealed. Nathaniel J. RIDDICK et al.

Plaintiffs took the following among other ex

ceptions: (......N. C.......)

i. That the court below beld the findings of

fact by the referee to be final. 1. The undeclared lunacy of a grantor

3. İbat tbe avoidance of the deed was made does not impair the title of a bona tide purchaser to depend upon the condition ibat plaiutiffs refor value and without notice from bis grantee.

pay to defendants the amount of their pur2. A conveyance by a man of his real

chase money. estate during the period in which the common

6. Tbat the deed was not held to be absolaw right of married women to dower was sus lutely void as to Roxana B. Odom, wife of pended, barred all claim of his wife thereon al.Oliver Odom. though she did not join in the conveyance.

Defendants excepted because the deed was

held voidable and was avoided as to them upon (January 14, 1890.)

repayment of their purchase money.

The further facts appear in tbe opinion.

Messrs. W. D. Pruden and L. L. Smith CROSS, appeals from a judgment of the Su

perior Court for Gates County confirming for plaintiffs. the report of a referee declaring voidable a deed

Messrs. Battle & Mordecai, for defend. to certain lauds,-plaintiffs appealing from so ants: much of the decree as made the avoidavce of

A deed executed by a lupatic without guar the deed conditional upon the repayment of dian, like that of an infant without guardian, the purchase money and refused to make it ab. is uot void, but only voidable. solutely void, and defendants appealing from

2 Bl. Com. * 191, 192; 3 Bacon, Abr. Idiots so much as beld the deed voidable. Affirmed and Luuatics, F: 2 Kent, Com. 451; Riggan on plainti jj's' appeal; rerersed on defendants'.

v. Green, 80 N. C. 286, and authorities cited. The action was brought by the beirs-at-law The ground upon which courls of equity inof one Oliver Odom to bave a deed from him terpose to set aside contracıs and other solemn to his brother Richard declared null and void. acts of idio's and lunatics is fraud. Richard bad disposed of the property conveyed

1 Story, Eq. Jur. & 227; Adams, Eq. 183. by said deed and the persons holding title un

If a court of equity in any case sets aside the der bis conveyance were made defendants. deed of a non compos, it will ordinarily admin

The case was heard by a referee, who de- ister the equity of having bir pay back to clared the deed voidable and directed ibat it the other party the money or other thing rebe avoided upon repayment to defendants of ceived of bim; and when it appears that the the moncy paid by them for the property. consideration is full, and the luvatic is not able

to put the oiber party in statu quo, or if the NOTE.-Bona fide purchaser.

benefit received is actual and of durable char. See notes lo Smythe v. Sprague (Masg.) 8 L. R.A.'acter-in either case, we court of equity will 824; McCleciey v. Wakefield (lowa) 2 L. R. A. 529. I not be inclined to set aside we conveyance,

Riggan v. Green, supra, citing Carp v. A purchaser for value, from one whose deed Holliday, 1 Dev. & B. Eg. 344, 5 Ired. Eq. 167. was declared by the jury to be fraudulent and

A purchaser for value from one whose deed void, gets a good title, if he has no notice of was declared by the jury to be fraudulent and the fraud in bis vendee's deed. Young v. void gets a good tille if he had no notice of the Lathrop, 67 N. C. 63; Wade v Saunders, 70 N. fraud in his vendee's deed.

C. 270; Daris v. Council, 92 N. C. 725; Perry Young v. Lathrop, 67 N. C. 63; Wade v. V. Jackson, 88 N. C. 103. Saunders, 70 N. C. 270; Davis v. Council, 92 The fact that it is found here that the defend. N. C. 725; Perry v. Jackson, 88 N. C. 103. ant's grantor obtained the deed without fraud

or undue influence, for a full anıl fair price, Clark, J., delivered the opinion of the and acting under advice of Oliver Odom's court:

counsel, who bad been bis attorney for years, The reference was by consent. By its terms surely cannot be allowed to put the defendants the referee was vested "wish power, sitting as in a worse plight tbau they would have been a chancellor, to decide upon the facts, and all placed if their grantor bad procured the conmaiters of law and equity arising upon the veyance by fraud and undue influence. The pleudings and testimony, with liberty to eitber great teachers of Euglish law say that persons party to except as to the referee's rulings on of non-save memory, etc., "are not totally dissuci matters of law and equity, and to appeal abled to convey or purchase, but only sub modo. therefrom." The parties reserved the right to Their conveyances are voidable but not void." except only to the referee's rulings as to the 2 Bl. Com. 291; 2 Kent, (om. 451. law By any reasonable construction, his find- The deed of a person of unsound mind, not ings of fact were to be conclusive. He found under guardianship, conveys Ibe seisin. Wait as a fact that the defendants purchased the v. Maxwell, 5 Pick. 217; Crouse v. Holman, 19 land for value, and without notice of any men. Ind. 30, and cases cited. tal incapacity on the part of Oliver Odom. Story, Eq. Jur. $ 227, says: “The ground

Had tbe defendants purchased directly from upon which courts of equity now interfere to Oliver Odom for value, and witbout notice of set aside the contracts and other acts, however bis mental incapacity to make a deed, a court solemn, of persons who are idiots, lunatics and of equity would not ordinarily set aside the otherwise non compos inentis is fraud. Such deed. Rigyan v. Green, 80 N. 0.236.

persons being incapable, in point of capacity, We do not see tbat the condition of the de- io enter into any valid contract, or to do any feodants is any worse because they bought me- valid act, every person dealing with them, dialely, and not immediately. The presump- knowing their incapacity, is deemed to perpe tion of law is in favor of sanity; and this pre- trate a meditated fraud upon them and their sumption is so strong that when a want of rights." To same purport, Adams, Eq. 183, it is clained, even in a capital case, the bur- and cases cited. den is on the defendant to prove it, the pre- This places the doctrine upon an intelligible sumption of sanity being stronger than the basis, and delivers the courts from the evident presumption of innocence. Wben, therefore, injustice and insurmountable inconvenience of a purchaser sees & regular chain of title, formal declaring that all contracts made with one apin all particulars, upon the registration books, parently sane, but who proves to bave been inexeruted by grantors of full age, and not femes sape, are void ab initio for want of cousenting corert, le bas a right to rely upon the presump- mind. This doctrine would give a lunatic or tion of sarity; and if, without any uotice, or bis beirs restoration of property sold by him matter to pui him upon inquiry, and for fair wit bout return of the money received for it, as value, be takes a deed, he should be protected. was actually held in Gibson v. super, 6 Gray, Ang other doctripe would place all titles upon 279, and Rogers v. Walker, 6 Pa. 371. The tbe bazard. If the title of an innocent pur- correct rule is stated by Mr. Story, in section chaser for value, and without notice, can be 228: “If a purchase is made in good faith, upset for the allege: mental incapacity of one without any knowledge of the incapacity, and grantor, it can be done though the grantor may no advantage has been taken of the party, have been a very remote one. The evidence courts of equity will not intersere to set aside must necessarily be sought among those friend the contract, if injustice will bereby be done to ly to the heirs of such grantor,-the neighbors the other side, and the parties cannot be placed and acquaintances of the party of alleged in. in statu quo.capacity; and it would be difficult for i be gran- Buswell, Insanity, § 413, says: A com. tee in possession to furnish proof of the sanity pleted contract for the sale of lands, made by of every grantor through whom be claims. an insane vendor, without fraud or notice to the Every man who shows the abnormal condition vendee of the grantor's insanity, and for a fair of mind which incapacitates him to make a cousideration, will not be set aside, either at conveyance of his property is sure to attract the law or in equity, in favor of the vendor or his attention of those around him, wbo have the representatives, except the purchase money be power, and sometimes exercise it, to conceal i restored, and the pariies fully reinstated in the ibe fact. It is a safer rule to require bis heirs, condition in which they were prior to the puror those acting for them, to take prompt steps chase. This rule appears to be unquestioned in to have the deed set aside, and parties placed the English counts.' To the saine effect is the in statu quo, before the property is conveyed able opinion of Horton, Ch. J., in Gribben v. to otber parties, and while tbe facts are capable Marroell, 34 Kan. 8 (decided in 1885), in which of full investigation, tban to subject a remote numerous authorities are reviewed and com. grantee to maintain the integrity of bis li'le by mented upon; and also in Behrens v. Mckenzie, rebutting allegations of incapacity in a yode 23 Iowa, 333, delivered by a very eminent of a long line of grantors.

judge (Dillon), and Corbit v. Smith, 7 Iowa, 60; Allen v. Berryhill, 27 Iowa, 534; 2 Pom. Eq. I their contracts, however solemn, in all cases of Jur. $ 946. See also Scanlan v. Cobb, 85 Ill. fraud, or when the contract or act is not seen 296; Young v. Stevens, 48 N. H. 133; Eaton v. to be just in itself, or for the benefit of such Eaton, 37 N. J. L. 108; Freed v. Brown, 55 Ind. persons. Riggan v. Green, 80 N. C. 239. 810; Carr v. Holliday, 5 Ired. Eq. 167.

The deed of Richard Odum passed the legal lo Lancaster Co. Nat. Bank v. Moore, 78 Pa. title, and is only voidable as to Oliver Odom 407, a lunatic was beld liable upon a note dis- upon the ground of fraud in taking title from counted for bim by the badk; and Paxson, J., que 'whom be koew to be mentally incapacsays: “It would be an unreasonable and un- itated. The property has been conveyed for just rule that such persons sbould be allowed a fair value to innocent parties, who took withto obtain the property of innocent parties, and out notice. relain bolb the properly and its price. Here It bas been beld in the leading English case the bank, in good faith, loaned the defendant of Greenslide v. Dare, 20 Brav. 284, by tbe Masmoney on bis pote. Tbe contract was exe- ter of the Rolls (since Lord Romilly), that if a cuied, so far as the consideration is concerned, conveyance is made by an alleged lunatic unaud it would be alike derogatory to sound law der undue influence, and for an inadequate conand good morals tbat be should be allowed to sideration, a purchaser from such grantee for retain it to swell the corpus of bis estate." To a valuable consideration, and without notice, the same purport are Person v. Warren, 14 would be protected, as any other purcbaser for Barb. 488, and Allie v. Billings, 6 Met. 415. value, and without notice, from a fraudulent

The couris have gone further, and held that alienee. The court instances the insecurity of wben the contract is fair and bona fide, exe- purchasers, if any other doctrine should be laid ecuted and completed, and the parties cannot be down. again put in statu quo, and there was no notice The case of Ashcraft v. De Armond, 44 Iowa, of mecial incapacity, the court will not sel 229, is not exactly in point, but illustrates the aside the contract at all. Molton v. Camroux, proposition that deeds from an undeclared lu2 Exch, 457, atlirmed on appeal, 4 Exch. 17; | patic are voidable on the doctrine of fraud. It Yauger v. Skinner, 14 N. J. Eq. 389; Niell v. bolds that where the grantee of a lunatic took Morley, 9 Ves. Jr. 478; also Lord Chancellor for value, and without notice, a subsequent Truro, in Price v. Berrington, 3 Macd. & G. purchaser from such innocent grantee for 498 and Lord Cranworth, in Elliot v. Ince, 7 value, though with notice of the original grantDeG. M. & G. 475.

or's incapacity, would not be affected; and It is clear, from these authorities, that the cites the well-established doctrine laid down in conveyances of an ipsane person, not previous. Kerr op Fraud and Mistake, 316, and cases ly declared insane, are voidable merely, and there quoted. Indeed, the facts in Riggan v. pot void; that the right to set them aside is Green, supra, are almost identical with this in based upon the ground of fraud; and that the every particular, and that case should be concourt will not usually interfere, unless there clusive of this. bas been fraud, or a knowledge of the ipsanity As to exception 6 of the plaintiff, it is suffiby tbe other party, and will then place the par-cient to say: (1) Roxana B. Odom is not a ties in statu quo. When, therefore, as in this party to this action; her rights, if any, are not case, the grantee knew of the mental incapacity set up in the complaint; and the plaintiffs of the giantor, but it is found as a faci "ibat claim under their father, and not under her. po traud nas practiced upon Oliver Odom, or (2) The deed from Oliver to Richard Odom undue ipfueng exercised to induce bim to was executed February 21, 1866,- two years make the deed; that be acted under the advice and a balf before the married women's rights of bis lawyer, who bad been bis counsel for were enlarged by the Constitution of 1869, years; that the price paid was a full and fair and more iban a year before the Act Has consideration for the land; and that the grant passed restoring to married women the com or was benefited by the making of the deed, as mon-law right of dower, March 2, 1867. There be and bis family thereby received a bome and was no necessity tben for a wife to join ber support,”-it would seem tbata court of equity Irushand to convey bis land. Sutton v. Askeu, would not set aside such conveyance even os 06 N. C. 187. See also Code, $ 2115. between the parties thereto, and certainly not Our conclusion therefore is that, upon the without restring the status quo ante. Scīby v. facts found, judgment should buve been enJackson, 6 Beav. 192.

tered for be defendants. This disposes of "Courts of equily ever watch with a jealous both appeals. care every Contact made with persons non In the plaintiffs' appeal, no error; in the decumpos mentis, and always interfere to set aside fenilants' appeal, error, and reversed.


Stephen KELLY

2. Only one point or subject should be em0.

braced in an assignment of error, Joseph M. BENNETT, Appt.


3. Placing an iron railing surmounted with

sharp points around an area in front of a house is (....Pa.....)

not negligence such as to create a liability for in1. The refusal of the court to grant a

juries by one of such points to the hand of a nonsuit is not assignable as error.

traveler, which he puts out to save himself from

falling wben be slips on an icy pavement. NOTE.- Prorimate and remote cause of injury. Bee Read v. Nicholas, post, 130.

(February 3, 1890.)

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