The verdict of the jury in this case eliminates a consideration of fraud or undue influence. Plaintiff’s case rests on the allegation and evidence offered in support thereof to the effect that at the time of the execution of said deeds, plaintiff did not possess sufficient mental capacity to make and execute the same or to know and understand the nature and extent of his acts. In the ease of Lamb v. Perry, 169 N. C., 436, 88 S. E., 179, this Court said: “The mental capacity required for the valid execution of a deed is the ability to understand the nature of the act in which the party is engaged and its scope and effect, or its nature and consequences — not that he should be able to act wisely or discreetly, nor to drive a good bargain, but that he should be in such possession of his faculties as to enable him to know at least what he is doing and to contract understandingly. ... A want of adequate mental capacity of itself vitiates the deed, while mere mental weakness or infirmity will not do so, if sufficient intelligence remains to understand the nature, scope, and effect of the act being performed.”
The law presumes that every person is sane in the absence of evidence to the contrary. Likewise, after a person has once been found to be mentally incompetent there is a presumption that the mental incapacity continues.
When the grantor in a deed brings an action to set aside and cancel his deed and alleges and offers evidence tending to prove that at the time of the execution of the deed he did not have sufficient mental capacity to make a deed or to know and understand the nature and extent of his acts, it is necessary in order to maintain the action in his own behalf to allege and prove a restoration of his mental capacity; otherwise, he is presumed to be incompetent to bring the action. It will be noted that in the case of Lamb v. Perry, supra, the action was brought by a next friend.
If the plaintiff is mentally competent to assert his rights and protect his interest at the present time, and there has been no change in his mental capacity since he executed the deed in question, he is estopped from challenging the validity thereof. Gaylord v. Gaylord, supra.
The judgment of the court below is