Dougherty v. Byrd

DeNNY, J. The 5th issue having been answered in the affirmative by consent, the only exceptions involved on this appeal are those as to the [19] burden of proof on tbe 3rd and 4tb issues. Tbe burden of proof on botb those issues was upon tbe defendant. Carawan v. Clark, 219 N. C., 214, 13 S. E. (2d), 237: “Thus, in an action to rescind a contract, as here, for that tbe plaintiff was, at tbe time, mentally incompetent, tbe plaintiff must show insanity or mental incompetency at tbe time tbe contract was entered into. Upon such showing tbe contract will be annulled unless it is made to appear — tbe burden being on tbe defendant— that tbe defendant (1) was ignorant of tbe mental capacity; (2) bad no notice thereof such as would put a reasonably prudent person upon inquiry; (3) paid a fair and full consideration; (4) took no unfair advantage of plaintiff; and (5) that tbe plaintiff has not restored and is not able to restore tbe consideration or to make adequate compensation therefor. Wadford v. Gillette, 193 N. C., 413, 137 S. E., 314, and cases cited. Creekmore v. Baxter, supra (121 N. C., 31); Story Eq. Jur., sec. 227; Adams Eq., 183.” His Honor’s charge was in conformity with tbe decisions of this Court. In tbe judgment of tbe court below we find No error.