The opinion of the Court was delivered by
Mr. Justice Watts.
*14 This was an. action for partition. Certain defendants claimed title. Appellants proved title in Thos. A. Causey and to his children. Contesting defendants offered seven deeds from Thomas A. Causey dated in May, 1906, and recorded the same year, after the grantor’s death, to all of which objection was made that there was no proof of delivery. On motion his Honor directed a verdict for the defendants. Appellants appeal and by five exceptions impute error.
1 The first exception imputes error in holding that the plaintiff could not offer testimony to show mental capacity of the grantor to make deeds, introduced by the defendants after said deeds had been introduced in evidence, and in excluding the evidence of witnesses to prove grantor’s mental incapacity to make said deeds; it being contended that his Honor should have held such evidence competent, and should have allowed it. This exception must. be sustained: the deeds could not be attacked until they were in. Defendants had pleaded title and introduced certain deeds, and proved the execution of the same by witness. The appellants then had the right to attack them on the ground of fraud, mental incapacity, or nondelivery, and his Honor was in error in excluding the evidence.
2 Exceptions 2, 4, and 5 raise, the same questions that his Honor erred in finding under the testimony that the deeds had been delivered and in directing a verdict for the defendants. These exceptions are sustained. Under the evidence the question of delivery should have been submitted to the jury for their determination, as under it more than one inference could be drawn.
3 Exception 3 is sustained, for, if the deeds were not delivered, or the grantor was incapacitated and could not make them, Ayer and Fuller could not have *15 any more title than their grantors had, and that issue should have been submitted to the jury.
Judgment reversed and new trial granted.
Mr. Chiee Justice Gary and Mr. Justice Fraser concur.
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