*582Dissenting opinion of
Gbeene, Associate Justice:I should have been pleased to concur with my associates in this cause. But I am unable to rid myself of convictions received in the court below, which have been revived and strengthened, rather than impaired, by the review of the evidence here.
The dissenting opinion, to which I am driven, is not, however, referable to any considerable divergence of view in regard to the facts. Indeed, my impressions of these are very nearly identical with those of my brother judges. As to the weight to be given to the testimony of the various witnesses, as to the attitudes that they respectively occupy towards one another, and this suit, and as to the facts to be gathered from the whole case, except the ultimate fact, of the mental competency of Clanrick Crosby, senior, at the time, and under the circumstances of the execution of the second mortgage, we are, as I under; stand it, pretty much and perhaps entirely agreed.
But, in three points we differ as to the law.
1. As to whether there was, in the second mortgage, a material variance from the first, as regards the maturity of the principal sum upon a foreclosure and sale, being had for default in payment of matured interest.
2. As to whether the description of the mortgage property in the second mortgage should be held to be materially variant from that in the first. And,
3. As to whether the burden of proof of mental capacity shifted upon the plaintiff in this case.
We are all agreed that had the original note and mortgage been merely replaced by others substantially the same, or others to which the maker freely and intelligently assented,- the new ones could not have been impeached, on the ground of the makers mental incompetency. Unquestionably he intended to execute the first, and equity would not relieve against any equitable though perfectly unconscious correctness of the formal or inadvertent defects. But if the second mortgage were materially different from the proper substance of that it was meant to replace, then its maker should have given it an independent, free and intelligent assent, in order to mate it his.
*583Now, first, it is clear to me that a mortgage, which does not by its conditions accelerate in any event the collection of the principal sum, is materially different from one that, in a certain event does; such, is the precise case of the two mortgages at bar.
2. It seems to me that a description like that.in the first mortgage, namely, “The Lincoln Hour Mills,” in the absence of any evidence to show its real or current import and content, is not to be presumed to include land that the evidence shows does not underlie it, and fails to show is in any way connected with its operation.
3. I think that the evidence, as a whole, discloses that Clanrick Crosby’s mind, at the time of executing the second mortgage, was very considerably deteriorated and enfeebled. In this, I differ from my associates.
The question is, clearly, not whether the plaintiff or any ■one else intended to impose upon him, or was guilty in a moral sense, of so doing, but whether, in feet, he was the victim of imposition. I feel obliged to hold, that, as soon as the evidence discloses that his mind had become permanently reduced by age or disease, below that of fair and ordinary intelligence and power, then he becomes the ward of equity, and he who asserts his free and intelligent assent to any contract must prove it. In this case, the plaintiff had gone so far as to prove that the eld gentleman, freely and understandingly, assented to the making of such a new instrument, as should remedy certain formal or inadvertent defects in the old. These defects were specifically and distinctly pointed out to him, and he recognized them, and agreed to their amendment. But, really the new mortgage was so drawn as to vary from the old, in other additional, and, as I think, substantial particulars, and in my opinion, the plaintiff needed to go farther, and show that these other particulars were distinctly and simply presented to Mr. Crosby, and recognized and agreed to by him.
The evidence fails 'just here. In no way do these particulars appear to have been brought to his attention, unless by the reading to him, one after the other, the old and new mortgages.
*584Ability, upon such a presentation, to follow, grasp, retain and compare the contents of both instruments, so as to note and approve the difference between the two, implies a strength and activity of understanding and memory, which, I am sure, the infirm listener did not possess. It was too much to lay upon one in his feeble condition, especially after a specific statement of defects, and a desire to correct them, had been made to him, and his mind had thus been presumably put at rest regarding the existence of any desire for further or other alterations.
The mortgagor’s son was present, doubtless, at the execution of the mortgage. But. he cannot, in this case, in the light of all the 'facts, be held to have been present as an advisor and protector of his father. He was there for his personal ends, seeking an extension of time upon the mill property. He was not in a position or mood to raise questions in his father’s behalf, about the description of property or the maturity of the principal debt. His own interests imperatively demanded time, at whatever cost to others.
It may be said, the points wherein I contend for proof of the clear, and free, intelligent assent of the defendant, Crosby, are slight, and that it would make little difference, practically, upon the facts in this case, whether such a mortgage as was intended at first, or such an one as was finally executed, were given by him. It may be so. But the free, intelligent operation of the mind of a man, about even the least of things that are his own, is a very sacred right, and should be uniformly and sturdily upheld by the courts.