I dissent from the opinion of the Court.
These are the cardinal circumstances of the transaction: The land in issue was worth $4,000. Nancy, the grantor, only got it by descent in April of the same year in which she conveyed it to Gracie, the grantee. Nancy conveyed it by deed to Gracie in June of that same year. Nancy died in October of the same year, and the grantee, Gracie, soon thereafter. The consideration was expressed to be love and affection and the care of grantor for her life. The grantor, Nancy, was upwards of 80 years old, very feeble in body by all accounts, and plainly of senile mentality. The grantee was not kin to her; the plaintiffs are her heirs at law.
The probate Judge who drew the deed testified:
"I do not remember the man. He was colored. I think there were two. I prepared the deed when they came into the office, and prepared it before I ever saw her. I went out with them to the buggy for the purpose of having her execute the deed. I have given all I remember of the conversation. She did not have anything to say; only answered my questions. I have given all the questions I asked her. She merely answered these. She did not get out of the buggy. She was very old. I do not know who came into the office, but whoever it was paid me, I suppose at the time I wrote it. I cannot recall who they were. This is all I remember about it. Her condition suggested the propriety of asking her some questions, and I have detailed the examination so far as I know. No: I cannot say whether she knew what she was doing or not. I asked her if she knew *Page 230 what she was doing, but I cannot say whether she really did know or not."
It is true that the probate Judge testified he would not have had the grantor to sign the deed unless he thought her mentally capable of the act. He could not have answered otherwise. But in the same connection he said:
"Her condition was such as to suggest that she might not be capable of making a deed. I did not go into full examination. If I had, I might have changed my mind.
"By Mr. Owens: One thing that led me to think it necessary to make inquiry was her age and general appearance, and the fact that she could not get into the office. I saw that the body was weak, old and worn and wanted to satisfy myself."
The probate Judge drew the deed at the direction of a negro who was and is unknown to him. The deed was signed by the grantor while she sat in the buggy in front of the courthouse, in the presence of the negro. The identity of the negro who secured the deed to be drawn and signed was not surely fixed by the testimony. No witness was sworn who testified how the old woman came to make the deed. The man who procured it to be drawn and signed did not testify, and though he alone knew how the deed came to be made. That circumstance is pregnant with meaning; it is a badge of fraud. He is said in the brief to be the son of the grantor, and named Duncan McRae. The witnesses testified Duncan took Nancy to Bennettsville. The clear inference from these facts is hostile to the integrity of the deed. If a third person, the son of a grantee, may procure to be prepared to deed to his mother from an old illiterate and decrepit woman, dictate the contents of it, and see it executed, and when the deed is challenged give no account of it, then the property of old people is not safe.
In my judgment the decree of the Circuit Court ought to be affirmed. *Page 231