Opinion by
Wingard, Associate Justice.This canse was brought at the December term, A. D. 1876, *579to recover upon a promissory note, and to foreclose a mortgage, given to secure the payment of the same, executed by the defendant, Clanrick Crosby, Sr., to the appellant as administrator, and dated April 30th, 1874. The other defendants were made parties, as subsequent incumbrancers.
The complaint alleges certain errors and defects in former instruments, made by Crosby, Sr., to secure the debt in suit, and that the note and mortgage, in suit, were given to correct such errors and defects.
The defendant, Crosby, Sr., defends, on the grounds of mental incapacity, fraud and imposition, and want of consideration. The issues raised, by the answer of Crosby, Sr., were alone tried, the court below finding the allegations of the answer to be true, as to the want of legal capacity, and' adjudging costs to the defendants. There is but little, if any controversy in this case, as to the principles of law which govern. The case turns upon the weight of the evidence going to prove the mental condition of Clanrick Crosby, Sr., on the 30th of April, 1874.
1. Had he, at that date, mental capacity to understand the-particular transaction which he performed?
2. Was there any fraud or imposition practiced upon him, or a want of consideration for the new contract?
As to the latter inquiry, we see nothing in the evidence to support it; nor do we understand it to be claimed in this court that there was any fraud or imposition practiced upon Crosby,. Sr., or that the consideration was not entirely adequate.
As to the first inquiry, we think the evidence, by a great preponderance, shows, that at the date aforesaid, he had a disposing mind; that he fully comprehended what he was doing; that he intended to do what he did, and that what he did was but an act of honesty, of justice and fair dealing.
The testimony shows that Clanrick Crosby, Sr., had been attacked several times with paralysis. He had such attacks in 1866 and 1867 and in 1873, and that he has never recovered' from the effects of disease, but has been getting worse, both, in body and mind.
*580It shows, that in 1874 and previously, he had been engaged in active business, merchandising, milling, etc., that in 1875, ■he left Puget Sound, alone, and went to San Francisco, Cal., on ■business and for his health; that he returned home, alone; that in December, 1873, he executed a deed to Charlotte Scott, which was witnessed by his son and partner, W. F. Crosby, and one of his near neighbors, Mr. S. G-. 'Ward; that December 29th, 1873, he made a deed to John Scott, witnessed by the same witnesses; that in January, 1874, he made a deed to the O. and T. P. P. Co., which was witnessed by his son, Walter, and Hazard Stevens, and acknowledged before said Stevens; that in March, 1874, he made another deed to said P. P. Co., witnessed by his said son, W. F. Crosby, and the said Stevens, and acknowledged before the latter, as Notary Public; that on May 15th, 1874, he executed a mortgage, on the same property covered by the mortgage in suit, to Marshall Blinn, which \yas witnessed by B. F. Dennison, who is his counsel in this suit, and by F. Tarbell, Notary Public, and now territorial treasurer, and acknowledged the same before said Tarbell; that on May 5th, 1874, he sold out his interest in the partnership with his son, W. F. Crosby, to the said W. F. Crosby, which was evidenced by a written instrument, witnessed by Dennison and Tarbell, aforesaid, and acknowledged before said Tarbell; that on May 15th, 1874, he made a deed for the mill, covered by the mortgage in this suit, to his son, W. F. Crosby, which said deed was witnessed by Tarbell and Dennison, aforesaid, and acknowledged before said Tarbell; that on Sept. 6th, 1873, he was appointed guardian of five minor children, in an estate valued at six thousand dollars, and continued as said' guardian, without apparent objection, until 1875 or 1876; that his wife died in 1871, and he was appointed her administrator, and so continued until 1876, said wife’s estate valued at $8700; that in 1876 he filed a petition in the Probate court for distribution of said wife’s estate; that in January, 1876, he made a deed to one Kuhn, witnessed by Alfred and Nathaniel Crosby, and acknowledged before the latter, a nephew, as Notary Public; that in March, 1876, he was sworn to a list of interrogatories, before his neighbor and friend, S. G-. *581Ward, Esq.; that in March, 1875, he made a deed, to his son, Clanrick Crosby, Jr., which was witnessed by Alfred and Nathaniel Crosby, and acknowledged before the latter. These, and other acts, he did shortly before, and subsequent to the date of the note and mortgage in suit, and several witnesses testify that they never heard his mental soundness questioned until this suit was begun. The old note and mortgage, for which the ones in suit were substitued, were read over to him, the object of the new note and mortgage was explained to him, in the presence'of his son, W. E. Crosby, and they were also read to him; he signed them in the presence of said son, who subscribed his name as a witness thereto, and the other subscribing witness was an attorney in this court. We think judgment should be given in this action, for the principal sum and interest according to the terms of the note, and a foreclosure of the mortgage pi’emises, and for the costs and disbursements of Stephen Hodgdon, administrator, etc., the plaintiff below. Let this cause be remanded to the District court, and a decree entered accordingly.