Sanderson, C. J., dissenting. In order to entitle a party to the relief sought in this case, upon the ground alleged, it must be made to appear, by satisfactory evidence, that he was, at the time of the execution and delivery of the several instruments sought to be cancelled, non compos mentis, within the legal meaning of those words. It is not sufficient to show a partial want of reason or understanding, for an entire and total absence must be shown in [388]order to authorize the avoidance of a deed where there is no fraud apparent on the part of the grantee. In Osterhout v. Shoemaker, (reported in Note a to Blanchard v. Nestle, 3 Denio, 37,) Mr. Chief Justice Bronson said: “ Our law does not distinguish between different degrees of intelligence. It does not deny to a man of a very feeble mind the right to make contracts and manage his own affairs. In the absence of fraud, proof of mere imbecility of mind in the grantor, however great it may be, will not avoid his deed. There must be a total want of understanding.”
The legal presumption is that every man is compos mentis, and the burden of proof that he is non compos mentis rests on the party who alleges it. Unless, therefore, it appears from the testimony in the case that the plaintiff was a lunatic, or entirely deprived of his reason and understanding at the time the several instruments mentioned in the complaint were executed and delivered by him to the defendants, he has failed to sustain his action, for the charge of fraud is, in my judgment, without foundation in the evidence. It is agreed that all the evidence bearing upon the question is contained in the transcript.
The plaintiff alleges that Ms insanity commenced soon after the first of March, 1856, which was the date of the defendants’ arrival in San Francisco. The bill of sale of the house and improvements on Sutter street to the defendant Mrs. Rowland-son was made on the 15th of August, 1855, more than six months prior to the alleged date of the plaintiff’s insanity. The only testimony as to the delivery of this bill of sale is that of the defendant Thomas Rowlandson, who stated that the plaintiff delivered it to his wife at breakfast on the morning after their arrival in San Francisco, which was the second of March, 1856, and according to the plaintiff’s own statement, prior to the date of his insanity. The other instruments were executed on the 15th of April, 1856, and acknowledged on the 21st of the same month, the latter being the same day on which the plaintiff sailed for New York.
The only witness examined by the plaintiff for the purpose [389]of establishing his insanity at or prior to the 15th of April, was Dr. Mackintosh, who had known the plaintiff for about twelve years, and for several years prior to his departure for the Atlantic States in 1856 had been his attending physician. Dr. Mackintosh stated that he last saw the plaintiff in 1856, about fifteen days before his departure; that plaintiff had been confined to his bed about ten days some short time prior to his departure East; that his disease was more mental than bodily; that his symptoms were alarming, showing a tendency to insanity. Upon cross examination Dr. Mackintosh stated that he could not say that the plaintiff was non compos mentis during any portion of the time he saw or attended him; but on re-examination he testified that his condition was such that he might have become insane at any moment from any exciting cause; that any prostration in his business or change in his property might have brought on mental alienation. Dr. Mackintosh was examined not only as the plaintiff’s attending physician, but as a medical expert. The most that can be claimed for his testimony is that it establishes a condition of health on the part of the plaintiff, at or about the time of his departure for the East, threatening future insanity upon any exciting cause affecting his business; but his testimony utterly fails to show that at any time prior to his departure the plaintiff had passed from sanity to insanity. If there is any other testimony than that of Dr. Mackintosh tending to establish insanity prior to the plaintiff’s departure for the East, it has escaped my notice.
On the part of the defense, several witnesses were examined for the purpose of showing that up to that time the plaintiff was perfectly sane. Among them was Mr. Richards, the confidential clerk, bookkeeper and business man of the plaintiff, who drew the instruments in question, and Thibault, the notary who took the acknowledgments. Also, Clement Mxon, who was the plaintiff’s barkeeper, and William McDonald, who was his drayman, and several others, who, as is shown, were on terms of intimacy with the plaintiff up to or within a short time of his departure, all of whom testified that they never [390]saw anything in the plaintiff’s manner or conduct indicative of insanity. It is true that the testimony of these witnesses is of a negative character, but in view of their long acquaintance with the plaintiff, and their means of observation and knowledge, it is entitled to great weight, especially when . sustained by the evidence of a medical attendant who negatives the idea of present insanity. In this connection, it is well to call attention to the following note, written by the plaintiff four days after leaving San Francisco, and addressed to the steward of the steamship Sonora, on board of-which the plaintiff sailed:
“ Mr. Thomas Harris—Dear Sir: Should anything happen to me on this passage, you will please take charge of all my things and deliver them to my brother-in-law, Mr. Thomas Rowlandson, of San Francisco, on your return. He will pay you any charge you have on them. I send my best love to my dear sister and all the folks.
“ I am, dear sir, yours truly,
' “ George T. Crowther.
“ Friday morning, steamer Sonora, on her passage to Panama.”
The plaintiff was' certainly sane when he wrote this note, but seems to have had at that time a presentiment of the calamity which soon after befell him..
For the purpose of showing that the jfiaintiff was insane when he sailed from San Francisco, or became so soon after, Joseph H. Lyon, a fellow passenger, was examined on the part of the plaintiff who testified to what are shown to have been symptoms of insanity, commencing with the day of his departure and continuing until the third or fourth day, at which time he became, in the language of the witness, “ a perfect maniac.” On the part of the defendants the purser of the ship, Mr. Goddard, was examined, who testified that he had been previously acquainted with the plaintiff. That he saw him on the second day out and two or three times a day thereafter until he became insane, and did not observe for the first [391]five days of the voyage anything in the manner and appearance of the plaintiff different from what he had observed in his previous acquaintance with him. It was his impression that the ship was approaching the tropics, about five days after starting, before anything was discovered or appeared to be the matter with the plaintiff. According to the testimony of both these witnesses there was a cabin passenger by the name of Lazard on board who, according to Lyon, occupied a room adjoining that of the plaintiff, and according to Goddard a room in the same part of the ship. Lazard had a keeper and was very violent and noisy. As to the effect of going into a warm climate and a close proximity with a raving maniac upon a person having a tendency to' insanity, Dr. Mackintosh was examined as an expert, and testified that these circumstances would have a tendency to produce an exaltation of the disease, and also to confirm it. Such is, in substance, all the testimony bearing upon the question of insanity except the fact that the instruments were executed without consideration.
The Court below found that the plaintiff conveyed the property in question to the defendants without any consideration, and I think that the finding in this respect is sustained by the evidence. The fact that a man has conveyed away, without consideration, all or nearly all of his property, unexplained, might afford ground to suspect his sanity, and if the other testimony in this case failed to explain the plaintiff’s conduct in this respect, I should be strongly inclined to hold that the finding of the Court below was correct. It is very difficult, if not impossible, to show by testimony the precise point of time at which sanity ends and insanity begins; and where it is clearly shown, as in the present case, that insanity actually existed within a short time after the events alleged to have been produced by it occurred, we should be justified in holding that the actor was at the time insane, when his acts are contrary to human experience and can be explained upon no rational theory. But I think that the conveyance of nearly all of his property by the plaintiff to his sister and her husband can be explained upon a rational theory deducible from the [392]evidence in the case, and that it can be shown that such theory is consistent with a sane, though not with an honest purpose, and that such conveyance, instead of being one of the effects of insanity, was a link in the chain of circumstances by which it was induced.
It appears from the evidence that at the time these conveyances were made there were several suits at law pending against the plaintiff for large amounts of money, one of which had already ripened into judgment for the sum of five thousand dollars and was standing on appeal. These suits were a source of constant annoyance and apprehension to the plaintiff and the staple of his thoughts and conversation. Suffering more or less from illness and the depression of spirits thereby induced it is not surprising that he should have regarded them, as he seems to have done, as threatening financial ruin. Nor is it altogether contrary to human experience to find him, under such circumstances, preparing to avoid the consequences of the coming storm in a manner in which neither law nor good morals can j ustify. It further appears, as we have already seen, that he commenced the work of transferring his property as early as August, 1855, by executing to his sister a bill of sale of the house and improvements on Sutter street, at a time when there is no pretense that he was insane, and without any consideration, as he himself alleges. And in January, 1856, he caused his bookkeeper to open an account with his sister, who had not yet arrived in the country, and from whom, according to his own account, he had never received a dollar, commencing with a credit of one thousand five hundred and thirty-seven dollars, cash loaned. He also bought a buggy for the sum of three hundred and fifty dollars in his sister’s name ; also, some property at the sale of the Folsom estate; all of which was done at a time long prior to the date at which he alleges he became insane. When his sister arrived, he delivered the ■ bill of sale, and afterwards proceeded and fully executed the design which he seems to have formed six months previous, by conveying his real estate to his sister, and transferring his mercantile busi[393]ness, including stock in trade, to her husband, and soon after departed from the State. Bodily illness, care and anxiety on account of his business affairs, apprehension of ruinous results following from the pending lawsuits, in connection with the fear that he had placed himself too much in the power of his sister and her husband, soon thereafter resulted in temporary insanity.
This theory, that the plaintiff transferred his property to his sister and brother-in-law for the purpose of placing it beyond the reach of his creditors, is moreover fully sustained by letters written by Rowlandson to the brother of the plaintiff, residing in Maine, and introduced in evidence by the plaintiff. In those letters Rowlandson represents himself as carrying on the business for the plaintiff, and desires that the plaintiff may be assured that his affairs are not suffering in consequence of his absence. This language, used at a time when the pending controversies could not have been anticipated, is in perfect harmony with the view which I have taken of this transaction, but it is widely at variance with the theory upon which this action is sought to be maintained. Had Rowlandson fraudulently taken advantage of the plaintiff’s alleged insanity for the purpose of robbing him of his estate, under the pretense of a purchase, he would not afterwards have spoken in letters to the brother of the plaintiff of the business and estate as being conducted and managed by him as the agent of the plaintiff and for his use and benefit.
Thus, the fact that the conveyances were made without consideration is explained by the testimony in the case, and shown to be consistent with the idea of sanity. Leaving this fact, therefore, out of view, the question of insanity is made to depend for its solution solely upon the testimony of Dr. Mackintosh and Lyon, on the part of the plaintiff, and Goddard, Richards, Thibault, -Nixon, McDonald and others, whose testimony was of a like character with that of the last four named, and the plaintiff’s note to the ship’s steward, on the part of the defendants. This testimony shows that the plaintiff became insane four or five days after he left San Francisco, but [394]in my judgment utterly fails to show that he was insane on the 15th of August, 1855, when he executed the bill of sale of the house on Sutter street, or on the 2d of March, 1856, when he delivered it to his sister, or on the 15th of April, 1856, when he executed the other papers, or on the 21st of the same month, when lie acknowledged their execution. On the contrary, there is in this testimony no conflict, and it all tends to prove, if it proves anything, that the plaintiff at these several dates was sane, or at least that he was not non compos mentis within the legal meaning of those words.
Such being my views upon the controlling question involved in this case, I am compelled to dissent from the judgment pronounced by a majority of the Court.
I think the judgment should be reversed and a new trial ordered.