Novem'r Term. V. 1870. ness, he prays that Beverley may be enjoined and restrained from further proceedings at law to enforce the judgment which Beverley had obtained in an action of Beverley unlawful entry and detainer, until the question of title Walden. could be fully adjudicated between them; that the contract and deed might be declared null and void; and that he might be restored to his rights, in like manner as if the same had never been executed. To this bill the defendant, Beverley, promptly filed his answer, in which he indignantly denied every im putation of fraud, and "all contrivance, artifice and deception, either expressed or to be implied from the statements of the plaintiff's bill, and all intent to defraud the complainant, based upon his ignorance and discovered imbecility or weakness, in his intercourse with him about the sale of horses, referred to, or at any other time." But, on the contrary, he found him to be a man of sense in business matters, with whom he dealt fairly, without any attempt at imposition or fraud. That so far from procuring the contract for the sale of his land, by earnest and persistent solicitations, the proposition to sell came from Walden. That he did not seek him to make the purchase; but that, being at Walden's house on other business, he happened to mention that he was going to look at a farm some miles distant, which had been offered for sale, when Walden said he would sell either of his two farms: the farm on which he resided at $40 per acre, or his farm known as "Carter's Run" at $25 per acre. That he declined to purchase, saying he would first look at the other farm he had mentioned, and if he did not buy that farm he would return in a week or two and look at Walden's farm. That not having made the purchase he was contemplating, he did return in two weeks after, and rode over both of Walden's farms. That he declined purchasing the "Carter's Run" farm at $25 per acre, but agreed to purchase the farm on which Walden re 1870. November V. sides at $40 per acre, that being the price at which Walden offered it. The contract was then written and Term. signed between them, by which it was agreed that $20,000 should be paid on the 1st August, 1863, and Beverley the residue on the 1st January, 1864. That some time Walden. afterwards, complainant, in person, requested respondent to pay the first instalment before the 1st August, in order to his making an investment in eight per cent. Confederate bonds; which request was complied with by respondent paying $20,000 on the 11th July, 1863. "The residue of the purchase money having been fully paid, a deed for the land was prepared, dated July 8th, 1863, written wholly in the handwriting of John Walden (the complainant), and was executed in the absence of respondent; nor was he present when the deed was acknowledged for record. And that the whole sale was thus begun, conducted and consummated, by the complainant Walden, freely, without even the presence of respondent to influence or control his action in its execution. Beverley also denies that Walden was laboring under any imbecility or weakness of understanding. He denies that he knew anything of any bodily infirmity or domestic troubles. Indeed, he denies all the material averments of the bill. He also calls attention to the manner and form in which Walden insinuates his own incapacity as a deduction of his present reasoning from the facts of the case, as stated by him, to show that "he could not bring himself to aver his own incapacity as a fact, but insists on it as a logical inference in order to avoid his deed." The depositions of numerous witnesses were taken by both plaintiff and defendant; and the cause coming on to be heard at the April term, 1868, before the Circuit court of Fauquier county, that court entered a decree directing that an issue be made up and tried on the common law side of this court, before a jury to be 1870. November impanneled therefor, to ascertain whether or not John Ter, Walden, at the time of the execution of the contract dated June 4th, 1863, and of the deed dated July 8th, Beverley 1863, in the bill and proceedings set forth, was of sound Walden. mind and understanding, capable of executing said contract and deed. It is from this decree that an appeal has been allowed to this court. V. While it is true that directing an issue to be tried by a jury is a matter of discretion in a court of equity, it is equally true that such discretion must be exercised upon sound principles of reason and justice. A mistake in its exercise is a just ground of appeal; and the Appellate court must judge whether such discretion has been soundly exercised in a given case. Wise v. Lamb, 9 Gratt. 294; Stanard v. Graves, 2 Call 369; Gardner v. Gardner, 22 Wend. R. 526; Dale v. Roosevelt, 6 Johns' Ch. R. 255; Reed v. Cline's heirs, 9 Gratt. 136. It seems to be now well settled, that, in no case, ought an issue to be ordered to enable a party to obtain evidence to make out his case; that, when the allegations of the bill are positively denied by the answer, and the plaintiff has failed to furnish two witnesses, or one witness and strong corroborating circumstances, in support of the bill, it is error in the chancellor to order an issue; that no issue should be ordered until the plaintiff has thrown the burden of the proof on the defendant; that, until the onus is shifted, and the case rendered doubtful, by the conflicting evidence of the opposing parties, the defendant cannot be deprived by an order for an issue, of his right to a decision by the court on the case as made by the pleadings and proofs. Smith's Adm'r v. Betty and others, 11 Gratt. 752; Pryor v. Adams, 1 Call. 382; Wise v. Lamb, 9 Gratt. 294; Grigsby v. Weaver, 5 Leigh, 197. In the language of Judge Carr, in the case last cited: "It is the bounden duty of the plaintiff, who calls for the sol Novem'r emn judgment of the court, to furnish that court with 1870. something like certainty on which to rest that judg- Term. ment; he may draw this from the defendant if he can; he may prove it by witnesses; he may establish it by Beverley documents; but in some way he must shew it, or he Walden. fails, and his bill must be dismissed." These well established principles are now to be applied to the case before us. It is first, however, worthy of remark, that the chancellor was so well satisfied that the plaintiff had entirely failed to sustain, by the proofs, the charge of fraud and undue influence, which was a prominent feature of his bill, that he directs no issue upon that subject; and I am constrained to say, looking carefully to all the evidence contained in the voluminous depositions in the record, that there is nothing, outside of the charges in the bill, to create the slightest suspicion of fraud or undue influence on the part of Beverley. There was nothing in the relation of the parties, or in the character of their intercourse and dealings with each other, which can give rise to such an imputation. The chancellor seemed to be of the same opinion, for he confines the issue which he ordered, to the single question of the capacity or incapacity of the plaintiff to make a contract. Whether he should have directed that issue, is the question we are now called upon to decide. Before we consider the proofs in the case, to ascertain whether it comes within the principles of law already laid down as governing such cases, it is worthy of notice, that the plaintiff, in his own statement of his case, hesitates, if he does not fail, to distinctly allege his own incapacity. He seems, himself, to doubt the fact of his own incapacity. It seems to require, to satisfy his own conscience, a statement of facts, and a process of reasoning upon those facts, to bring himself reluctantly to the allegation of his mental unsoundness. He says that, "looking back" to the facts he V. Novem'er Term. V. 1870. has narrated, "he is astonished at the part he enacted;" that he is satisfied that, possessed of his proper reason, he never would have played such a role;" and Beverley then says that he believes, and therefore charges, that Walden. he was not of sound mind at the time he executed the contract of sale and deed to Beverley. No one can read the plaintiff's bill without discovering a manifest hesitation and reluctance to bring himself to aver his own incapacity, and at the most, he rather insists upon it as a logical inference than avers it as a fact. He admits, too, that there were intervals, even during the time of his alleged incapacity, when "he could engage in an active watchfulness over his property." There is another noticeable feature in the plaintiff's bill, which, to say the least of it, does not commend his case very strongly to the favorable consideration of a court of equity. He states that in January, 1864, (when it is admitted on all hands, even by himself, that he was under no disability for want of capacity,) he began to realize the ruin which by his own acts he had brought upon himself, and began to prepare to assert a claim to his farm, determining that, when the proper time came, he would contest Beverley's right under the deed. And so it seems, that, though he executed then, when there was no incapacity existing or alleged, a contract under seal, renting the land from Beverley, which contract recognized the conveyance from himself to Beverley, in express terms, yet he admits, in a bill which asks relief from fraud and imposition, that he was himself practicing deceit and false dealing, in order to retain possession of the land. Such allegations of the plaintiff's own duplicity and deceit, present his case in no favorable aspect to a court of equity. The answer of Beverley denies all the material allegations in the bill, and puts them all in issue. According to the well established rule, to overcome this an |