ONSLOW COUNTY, NC - COURT - Edward Ward et al v. Daniel M. Dulaney et al
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Contributor's Note:  This a court case that was heard in Mississippi but 
involved ALL Onlsow County people.  It had to do with Alice Ward's marriage to 
Nathaniel Loomis, his death, and her later marriage to Daniel Dulaney.  Alice 
had no children.  When she died her nieces and nephews sued Daniel saying that 
Alice was mentally inept and couldn't have entered into a marriage contract 
with him; therefore he was not entitled to her assets upon her death.  It 
appears that there were depositions taken in Onslow and included many 
prominent citizens.  It reads like a who's who of Onslow County in the early 
19th century.

23 Miss. *410
*EDWARD WARD et al v. DANIEL M.
DULANEY et at.
 (January Term, 1852)
[page 155 - 164]
When a marriage is proven, every presumption of law is in favor of its
validity until rebutted, and if a party contracting marriage was sane at the
time it took place, proof of insanity before and after marriage will not
invalidate it.
[Cited in Smith v. Smith, 47 Miss. 215; Rundle v. Pegram, 49 Miss. 755]
[See 34 Cent. Dig. Marriage, 58.]

A marriage took place in another state between D. and Mrs. L., and some time
after the marriage the wife died, when W. and others claiming to be her
heirs at law, filed a bill to declare the marriage contract void, alleging
the insanity of Mrs. L. at the time of the marriage with D., and claiming
the right to obtain possession of the property belonging to the wife at
marriage.  Held, that the marriage contract is regarded a sacred obligation
in law, and will not be annulled for slight or doubtful causes.

If the marriage was void on account of insanity, this court will not say
that the subsequent cohabitation of the parties, after the wife became sane,
will ratify the previous invalid act upon the common law rule, that consent
and cohabitation will make a valid marriage; but, taking it for granted that
it was a nullity and void, and incapable of confirmation, held, then, that
Mrs. D. was a feme sole, and, as such, it was necessary she would have
asserted her rights according to the rules applicable to every one; D., by
possessing himself of her property, was a wrong-doer, and acquired no right
to retain it; an action for its recovery immediately accrued to her, and it
became for her to assert her rights according to law, within six years after
the cause of action accrued, or if insane at that time, within six years
after the removal of the disability; this she did not do, and the plaintiffs
can assert no right but through her, for if the statute would bar a recovery
by her, it will bar this action.

As the evidence establishes the fact that she was sane after the date of the
alleged marriage, at least six years before her decease, and she commenced
no action for the recovery of the property; held, that the defendant's plea
of six years statute of limitation must be sustained.
[See 33 Cent. Dig. Limitation of Actions, #234]

[See 34 Cent. Dig. Marriage, #131, as to the point about eight or nine years
after the death of the decedent's first husband she became passionately
attached to his nephew.  On his marriage with another she became callous and
indifferent to her business interests, would frequently cry all night,
indluging her grief in the wildest manner.  She moved out of the elegantly
furnished house in which she lived into another more retired and gloomy and
more plainly furnished.  Though well off, she became niggardly in her
economy, spun and wove the material for her own clothes, and worked in the
fields.  Several witnesses testified that she was insane.  On the day of her
marriage with defendant she had been working in the field and when brought
to the house was covered with dirt and dust.  Though persuading her to dress
in simple style, her maids, were unable to get her to change her shoes and
stockings.  An interested witness testified that she laughed at the
suggestion of a marriage, and during the ceremony kept repeating: "No, no;
never.  It is preposterous," -- but that later she presided at the head of
the table, and though quiet and cheerful, said that she "had committed a
great folly."  There was evidence for defendant that up to the time of the
marriage she had attended to her social duties, giving and attending
parties, at which she demeanded herself with propriety, and conversed freely
and sensibly; that she attended to her business, made contracts for the
employment of overseers, and managed the affairs of her plantations; that
she had been appointed guardian of one of her nephews, and discharged her
duties without complaint or objection to the time of her death; that she
acted as her own housekeeper before the marriage, as housekeeper for the
defendant while they lived together, and later for herself again, and
displayed as great skill, prudence, and capacity as any lady in the
community.  Held insufficient to show that she was mentally incapable of
contracting the marriage with defendant.]

In error from the superior chancery court; Hon. Stephen Cocke, chancellor.
This was a suit originally instituted by bill in the superior chancery court
by Ward and others, claiming to be the heirs of Mrs. Loomis, to annul a
marriage contract which Mrs. Loomis had before her death entered into with
Daniel M. Dulaney, the defendant
*411
in error, and also to obtain possession *of all the property Dulaney
obtained by his marriage with Mrs. Loomis in her lifetime.  The facts of the
case as shown by the record are, that in the state of North Carolina, in
June, 1826, Dulaney was married to Mrs. Loomis, who had been a widow of
considerable property; and the parties lived together after marriage as man
and wife, for about nine months, when they separated, Dulaney making
provision for the comfort and support of his wife, until her death, which
took place in 1836, and he subsequently removed to the state of Mississippi.
It was in proof that Mrs. Loomis, both before and after her marriage with
Dulaney, had intervals of apparent insanity; and the bill of plaintiffs in
error charges that Mrs. Loomis was a lunatic at the time she was married to
Dulaney, and therefore incapable of making a marriage contract, and further
prays that the marriage may be declared void, and that they, as her heirs
and representatives, may be put in possession of her property, now claimed
by Dulaney, her assumed husband, under the laws of North Carolina.  The
defendants deny the charge of insanity of Mrs. Loomis, at the time of her
marriage with Dulaney to contract the marriage, and that by virtue of the
same, he, (Dulaney,) under the laws of North Carolina, the state in which
the marriage took place, became possessed of all his wife's personal estate,
and choses in action she had at the time of marriage; and defendants in
error rely also upon the statute of limitations of the state which requires
persons non compotes mentis to claim their rights within six years after
they shall have been restored to their proper mind; and that if Mrs. Loomis
was insane at the time of her marriage, she subsequently, with that period
of time, was restored to sound mind, and her heirs cannot claim more than
she could if living at the filing of the bill by plaintiffs in error, and
she being barred by law, if living, from suing, they are also.
The court below dismissed the bill of complainants, from which decision they
prayed a writ of error to this court.
John Delafield, Jr., for plaintiff's in error, argued the case at length,
and filed an elaborate printed brief.
*412
*T. J. Wharton, on the same side, made an elaborate oral argument, but filed
no brief.
A. C. Baine, on the same side, filed a lengthy brief in the case.
William R. Miles, for defendants in error, argued the case orally at length
before the court.
Dyer & Hooker, on the same side, filed an elaborate written argument in the
case, reviewing at length the facts and law of the case.

Mr. Justice YERGER delivered the opinion of the court.
In the year 1842, the complainants, all of whom are minors, suing by their
next friend, George W. Penn, except Eliza Jane Hall, who joins with her
husband, filed their bill in the superior court of chancery, claiming by
representation in place of their father, Eli W. Ward, deceased, to be the
heirs at law and distributees according to the laws of North Carolina, of
their grand aunt, Alice Dulaney or Loomis, who, it is alleged, died
intestate and unmarried in Onslow county, North Carolina, on the ___ day of
September, in the year 1836.  The bill states that Alice, the aunt of the
complainants, was in her lifetime seized and possessed of a large real and
personal estate, and while so seized and possessed became insane, and
incapable of making any kind of contract, whether of marriage or otherwise.
That the defendant, Daniel M. Dulaney, taking advantage of this mental
alienation, and intending to cheat and defreaud her, took possession of her
whole property, and now holds the same, claiming it as his own under a
pretended contract of marriage; when, if any such pretended contract was
made, the same was utterly null and void, because of the insanity of their
aunt, and her consequent incapacity to contract.  A decree for an account
and distribution is sought.  The defendant answers and positively denies the
insanity of Mrs. Loomis, as alleged in the bill, and avers her marriage with
him on the 8th day of June, 1826, at
*413
which time she was *of perfectly sound mind.  He states that they lived
together as man and wife about nine months, when they separated, and that he
made ample provision for her comfortable support and maintenance until her
decease, which occurred on the -- day of September, in the year 1836.  He
insists, that by virtue of this marriage, he became entitled by the laws of
North Carolina, where the marriage took place, to all the personal estate
and choses in action of Mrs. Loomis.  He also relies upon the statute of
limitations, alleging that the lady, if not sane on the day of the alleged
marriage, became so afterwards, at a period ten years preceding her decease,
and being so compos mentis, was capable of asserting and maintaining her own
rights against defendant, and recovering the property from him is she was
sole and unmarried as alleged, and that complainants are therefore barred
from maintaining this suit.  The chancellor dismissed the bill, from which
decree an appeal has been taken to this court.  On this record, three
questions are presented for our consideration.  1.  Was Mrs. Loomis sane of
the 8th day of June, 1826, the date of the alleged marriage?  2.  If not
then sane, did she afterwards become so at any period within six years
before the commencement of this suit?  3.  If so, will the statute of
limitations bar the right of complainants to recover in this suit?  The
testimony in the record is voluminous, and on some points conflicting and
irreconcilable.  The case, in many of its circumstances, is novel and
interesting; the arguments of the counsel have been able and elaborate; the
amount of property involved is large, and the decision we make may have an
important bearing upon the reputation and character of some of the parties.
We have, therefore, endeavored to give to the case that calm and rational
investigation which these considerations seemed to demand from us.
The facts in the record about which there seems to be no dispute are these.
The parties were domiciled in the county of Onslow, in the state of North
Carolina.  They were both connected with most respectable and influential
families in the county; both were in comfortable, and in what might be
considered in the county, affluent pecuniary
*414
circumstances.*Their estates were nearly equal in point of value; the lady
having rather more property; but owing more debts, both had reached the
prime of life, and had been previously married.  The defendant Dulaney was
one of the most popular and influential men in the county; had represented
it in the legislature of the state, and had a high standing for honor and
integrity.  The lady was the widow of Doctor Loomis, upon whose estate she
had administered, and in the management of which and of business generally
she had displayed shrewdness, good sense, and clear judgment, and up to the
year 1822, by the testimony of every witness, was remarkable for her
intelligence, her ladylike demeanor and social virtues.  At that period of
time it is alleged, a change was developed in her character; that her mental
faculties became impaired, evincing symptoms of derangement, gradually
increasing in strength until the 8th day of June, 1826, the date of the
alleged marriage, when it is said she had become entirely insane, destitute
of a will, and incapable of contracting.  If this be so the pretended
marriage was a nullity, and conferred none of the rights of a husband upon
the defendant.
The contract of marriage, like all other contracts, to be valid and
obligatory, requires the assent of both parties.  If either party, from
imbecility of mind or deranged intellect, be incapable of volition or unable
to comprehend the nature of the engagement which they profess to make, the
marriage will for such cause be declared null and void.  But this contract
is so important in its consequences, the rights, duties, obligations and
responsibilities which it creates and imposes are of so delicate and
important a character, involving not only the happiness, well-being, and
respectability of the parties themselves, but also the honor and peace of
families, that the policy of the law requires courts of justice to sustain
and uphold it, unless the proof be entirely clear and satisfactory, leaving
no reasonable doubt upon the mind of the incapacity of the party and the
consequent invalidity of the marriage.  What degree of mental imbecility,
what extent of intellectual alienation, will suffice to annul a contract of
marriage, it is difficult to pronounce; certainly mere weakness of
intellect, or even
*415
great*eccentricity of conduct unless it reach a point that evinces inability
to comprehend the subject-matter of the contract, will not suffice, and
every principle of sound policy and humanity admonishes us, that a contract
so important in its social relations, and bearing so materially on the peace
and happiness of families, should not be set aside upon slight grounds, or
on less proof than would suffice to annul contracts less sacred and
important in their nature.  With this view of the principles which should
guide us in our investigations in this case, we will turn our attention to
the proof.
In the first place, we must bear in mind, that it is proved and admitted a
marriage in form, was celebrated between the parties, and every presumption
of law is, therefore in favor of its validity, until rebutted.  The answer
of the defendant, Dulaney, denying the charge of insanity, is also evidence
in his favor until disproved.  If the party was sane at the time of the
marriage, proof of insanity before and after will not invalidate it.  The
main witness relied upon by complainants to sustain the bill, is Nathaniel
L. Mitchell.  He was a nephew of the lady, about five years of age when she
first became a widow, and about seventeen when she was married to Dulaney,
and if the marriage be null, is entitled to a distributive share of the
estate, but that his claim seems to be barred by the statute of limitations.
He was raised by Mrs. Dulaney, and regarded her, as he states, in the light
of a parent, and he was present at the marriage.  The counsel for
complainants have not therefore without much reason placed great stress upon
his testimony.  Mitchell states, that his aunt was a widow about twelve
years.  For the first eight or nine years she was rarely without the most
brilliant offers of marriage.  Among her suitors was Dulaney, who was twice
rejected.  She was reputed rich, fashionable, remarkable for her good
judgement in all business matters, having speedily settled up the affairs of
her deceased husband, upon whose estate she had administered, and also
purchased from, and paid the other heirs for their interest in the estate by
means of her economy and thrift.  About eight or nine
*416
years after her husband's death,*a change was observed in her conduct.  She
became passionately attached to Harris Loomis, a nephew of her deceased
husband, and who was about twelve years older than witness and had also been
raised by and lived with Mrs. Loomis, until his marriage to a Miss Mitchell
of Newbern.  Before this marriage, the change in her conduct was exhibited.
She grew callous and indifferent about the success of her business,
negligent of her husband's affairs, and alive only to every interest and
whim of Harris.  He did not reciprocate her love.  She became restless,
would frequently cry all night, throwing herself first in bed, and then out
of it, before the fire, indulging her grief in the wildest manner.  Harris
married, and this event seemed to fix her misery forever, dethroned her
reason, and for a length of time she seemed unconscious, that she was the
head of a family or household or large estate.  About a year after this
marriage, the wife of Harris died, and that event rekindled her flame, and
she seemed to live in another but equally unreasonable sphere of action.
She aroused herself to the most intense action and as if spurred on in the
daring enterprise to accumulate still more wealth to lay at the feet of
Harris, she would labor almost night and day.  Her economy was niggardly
thrift.  She spun and wove with her own hands, and wore her own home-made
frocks, such as before she had never been used to.  She would go and remain
whole days on her plantation, and return covered with dirt and dust, and
blistered by the sun and the hardest labor, and so for a season she would
continue, and then relapse of despair into entire indifference.  Harris soon
afterwards married a second time, a sister of his former wife.  Now then she
would seem to bring to her heart every thing calculated to increase her
matchless misery; deep-rooted despair assumed its conquest over her, and she
no longer recovered, though she had partial lucid intervals.  A stranger, or
long absent acquaintance, would think her herself again, for a half hour or
such a time.  The witness retained almost unlimited influence over her; if a
trade was proposed, he persuaded her into it or out of it, and so about
almost every thing, about the time of her marriage, and for some time
previous.
*417
She *moved to no end, and labored to no fixed object, but was the embodiment
of fixed misery and despair itself, frequently asking if grief would not
kill its victim.  Her miserable state of mind extended its baneful influence
throughout her whole household, and indeed to her nearest neighbors; old and
dilapidated people being called in to cry with her and match their miseries.
She abandoned her former home, fine house, elegant furniture, &etc., and
took up entirely at her Sound plantation, which was far more retired,
gloomy, and more plainly furnished.  This she made the desolate abode of
wretchedness.  These facts were familiar to all her acquaintances.  Still
her business being managed by overseers, who felt the influence of the
watchful eyes of expectant heirs, no one presumed to make a move to take her
business out of her hands, upon the ground of insanity.  Some kind of a
change, all agreed to be necessary.  Some thought a good husband would
reanimate her, others advised her to break up housekeeping and hire out the
land and negroes, and that travel would restore her.  Those who advised
matrimony, seemed to prevail.  For, by some means, Col. D. M. Dulaney, being
a man of right age and respectability, and at the time very popular in the
country, was induced, by some motive unknown to witness, to become a suitor
a third time, and this suit proved successful, for he married her.  The
witness states that he was present at the marriage, as also was B. F.
Dulaney, a brother of defendant, and William Mitchell, the uncle of witness,
a justice of the peace, who performed the ceremony.  Witness does not
recollect if any others were present, though one or two might have been.  He
states that Dulaney, knowing his influence over his aunt, courted witness,
who agreed with her friends, that a change of some kind was necessary, and
believing that a marriage with such a man as Dulaney might restore her to
reason and happiness, he forwarded Dulaney's views.  He would attend their
interviews, hear Dulaney's speeches, and properly temper and direct them.
Perhaps for a time the idea (of marriage) would be laughed to scorn, and
then for a time the nurslings of her grief would interpose and so on; again
a happy preparation by witness in advance, would cause her to listen with
reasonable
*418
attention to *Dulaney's proposals, assenting and agreeing to them and even
adding her own conditions for making some suitable gift of property to
witness, and perhaps others; to all of which, Dulaney gave a ready assent,
though this thing was never done.  As soon as Dulaney was out of sight, she
would cease to remember or know a thing about any engagement she had entered
into with him.  Such was the case up to the very day set by Dulaney for
their marriage, a fact so well known to him, that it was made the duty of
witness to keep her right.  Witness permitted her to forget all about the
day for the marriage, but made some little preparation for it himself, by
sending up to her former well furnished house for some few things deemed
necessary.  The morning arrived.  She was ignorant of it; chanced to be
seized with one of her industrious fits; drew on one of the two old
home-spun coats she had fabricated at home, and went into the field, a mile
from the house, there remained till witness went and brought her home, to
prepare for the marriage, by some plausible pretext.  He summoned her two
maids to wash off the dirt and dust that covered her, and to dress her.
When he made her aware of the object and necessity of preparation, she was
greatly astonished and rebelled against the idea, denying that any thing she
had said could be so construed; at any rate, she  was resolved to have no
more of it, but to tell Dulaney, on his arrival, to harbor no longer so
mistaken an expectation.  Such was her condition when Dulaney drove up in
his gig.  Witness gave him to understand that she was rather a worse case
that day than usual.  Witness succeeded in getting her to dress, (to receive
company, not to get married,) in simple, plain ever-day style, except her
shoes and stocking, which it is his impression he could not get her to
change.  Thus prepared, he introduced Dulaney into her room, left them alone
for a season, until he felt pretty sure there would be no disappointment.
She had been got into the mood of talking, half jesting, &etc., on the
subject, half way yielding, and half way repelling, &etc.  The magistrate
with the brother of Dulaney arrived, and Dulaney and witness urged her at
once, then and immediately to make him and herself happy, &etc.  She
*419
laughed as if at a farce, and oft re*peated, "oh! no! no!" &etc., but, at
the same time, not struggling hard to get away, caused Dulaney to rise and
pull her with reluctant steps along, with her feet in her old slipshod
shoes.  The witness thus proceeds:  They were standing before the squire and
Benjamin F. Dulaney and myself, during the whole of which time she never
ceased to struggle gently to be released, and to exclaim, "No! no! never! it
is preposterous.  What consummate folly! what are you doing?" laughing the
while.  The question as usual being put to Dulaney, he gave the customary
assent.  The question, when put to her, she heard not, or heeded not if she
heard, keeping up her everlasting "No! no!" &etc.  But laughed and appeared
pleased to have done with it, as if really it was not a wedding, but a sham
representation of one.  That evening she presided at the head of the table,
appeared quite cheerful, as much at least as her shattered faculties could
indicate, and then it was, at the table, she for the first time seemed to
reflect about it, and think she "had committed a great folly," to use her
own words.  This marriage seemed to arouse her for a while to a juster
consciousness of things, and a more quiet state of feeling, and certainly
for a short time promised to verify the prediction of those of her friends
who advised marriage.  The next day, Dulaney took her to his home, during
which ride of twelve miles, she seemed composed, serious, but reconciled.
How long she so continued, witness cannot state with any accuracy, but he
felt the utmost confidence, and witness then roamed more at large.  We have
thus given the substance of this most remarkable deposition, using mostly
the very language of the witness.  Before commenting upon it, we will
briefly state the remaining proof in the cause.
Jacob J. Doty states, that he knew the lady for about twenty years.  She was
for many years subject to hysterics, but he does not think she was
considered of unsound mind till the spring of 1822, after which witness did
not believe she had mind enough to be contented with any act of her own for
a whole week together.  He was often at her house with Harris Loomis and Eli
W. Ward,
*420
(the father of complainants,) after *the spring of 1822, when she was quite
crazy.  Common report stated her to be so.  "As crazy as the devil, as crazy
as a loon, and the crazy widow," were by-words, in reference to her.  He has
seen her at lucid intervals, when she appeared pretty well, but not of like
mind as previous to the spring of 1822.  Again, he has seen her passionate
and sinking therefrom into apathy and apparent misery.  Sometimes quite
dressy, and again as neglectful.  The affair of love with Harris Loomis was
believed by some of her most intimate friends to be the cause of her
situation.  Joseph D. Ward states, that he was an intimate friend of the
father of complainants.  He knew Mrs. Dulaney from infancy.  She had always
been proverbial, up to a certain period, for industry, economy, and
notableness; but some time before her marriage with Dulaney, it was
generally known in the county and elsewhere around, that her mind from some
cause or other was radically affected.  Few had better opportunities of
knowing this than Dulaney, as they had been born in a mile of each other,
resided in the same county, and were about the same age.  At no time after
her marriage, and for a considerable time before, was she fully capable of
making a contract.  The change in her condition was plain and perceptible to
every one.  Elizabeth Ventriss, Cassey Cowell, Owen Huggins, David Scott,
Edward Scott, William Scott, Rebecca Hammond and Turner Ellis, testify to
their opinion of her derangement, and state such acts, as tearing her
clothes, attempting to set the house on fire, exposing her person, &etc.,
and other acts of extravagance as evidence of derangement, which acts they
say were generally known.
To counteract the effect of this testimony, the defendant has introduced a
very large number of witnesses, who testify to the sanity of his wife, both
before and after this marriage.
Edward Dudley says, he knew Mrs. Dulaney from his infancy to the period of
marriage, and not only considered her of sane mind, but as possessed of
rather a superior order of intellect.  She lived but a mile from his
father's, and the two families had constant and friendly intercourse.  As an
evidence of sanity, he states, that she administered
*421
on Dr. *Loomis' estate, and settled the same with energy and skill.  In
social intercourse and all business transactions she never acted in such a
way as to excite a suspicion of insanity, nor did her relations ever treat
her as a lunatic.  Dulaney was a man of substantial property, maintained a
high character for honor and integrity, which witness never heard impeached
before or since his removal to Mississippi, and the separation between
Dulaney and wife, was a source of great surprise and regret to the community
generally.  He thinks Dulaney was worth about twice as much property as his
wife, when they married.
Daniel Ambrose testifies substantially to the same effect.  He also proves
that she was subject to hysterics every two or three months.  He was
consulted by her in relation to the settlement of her husband's estate, and
he therefore had opportunities of judging in relation to the state of her
mind.  Her nephew Eli W. Ward and her brother Seth succeeded in borrowing
most of her money.  After the separation, Dulaney built her a comfortable
house and furnished it well, and there Mrs. Dulaney resided.
Joseph M. French knew Mrs. Dulaney; never heard or suspected she was insane;
frequently saw her passing by his father's on her way from one plantation to
another, and she frequently stopped and consulted his father about her
business and farm.  Her conversation was sensible and business-like.
William P. Ferrand, a merchant with whom she did all her mercantile business
till her marriage, proves her to have been "A smart old lady, and a keen,
shrewd trader."
Edward Williams knew Mrs. Dulaney for twenty years; frequently saw her at
the court-house attending to lawsuits connected with her deceased husband's
estate, and was often at her house.  He always believed her to be of sound
mind, intelligent, and one who managed a large estate as well as any woman
he ever knew.  No man had a higher character in the county than Dulaney.
D. W. Sanders proves that Mrs. Dulaney was a relation of his, and for seven
or eight years before she married Dulaney was an intimate friend, and at no
time did he ever see the slightest symptom of insanity.  Dulaney
*422
was in easy and inde*pendent circumstances when he married.  When he removed
to Mississippi he possessed the friendship, entire confidence and good-will
of the family and relations of his wife.
David Ward was a relation of Mrs. Dulaney; knew her from his infancy; saw
her not long before her death; considered her of sound mind before and after
her marriage.  She was of an irritable temperament, easily wrought upon by
adverse circumstances, and would then fret and complain a good deal.  Saw
her frequently in company, where she conversed freely and with good sense;
spoke freely to her friends about her business affairs, and complained much
of her nephew, Eli W. Ward, who borrowed her money and refused to pay it,
which was the cause of all her embarrassments.  He also proves that Dulaney,
after the separation, built her a house and furnished it, and also furnished
her with every thing necessary for her maintenance.
Daniel L. Russell was an inmate in Mrs. Dulaney's house in 1822, before her
marriage to defendant.  He saw her frequently immediately before the
marriage; she had the entire management of her business.  In social
intercourse she conducted herself with the utmost propriety, and was treated
by her relations and intimate acquaintances with the most marked attention
and respect.  He considered her at the period of her marriage of perfectly
sound mind, and never heard a different opinion expressed.
D. W. Simmons was acquainted with Mrs. Dulaney during the lifetime of her
first husband, and up to her marriage with Dulaney.  He often observed her
skill in business; she was proverbial for industry and tact in the
management of her domestic matters to great advantage, and never exhibited
the least symptom of insanity.
Elizabeth Mitchell knew Alice Dulaney fifteen or twenty years before she
married Dulaney.  They were in the habit of visiting each other.  She saw
her frequently before and after her marriage, and never saw any thing in her
conduct or action that would lead to the belief of her insanity; on the
contrary, she attended to her business with care and dispatch.  After the
separation, Mrs. Dulaney boarded in the house with witness
*423
*for six months, and neither then nor at any time during her acquaintance
did witness think her intellectual faculties were deranged.  Mrs. Dulaney
was an industrious and business-like woman.
Nancy Ambrose was acquainted with her for twenty years or more before her
marriage, and knew her from that time till her death.  She never showed any
symptoms of insanity.  Witness was a distant relation; they met
occasionally, and she was intelligent on all subjects that were conversed
upon.
Mary Dulaney did not know Alice Dulaney before her marriage to defendant.  A
few days after that, defendant brought her to visit witness.  They met
frequently afterwards for six years.  She was not insane; was intelligent
and competent to transact business.  At the marriage of one of defendant's
daughters, Alice Dulaney superintended the supper, and managed the household
affairs with as much ability as any lady could.
Nancy Roberts knew Alice Dulaney after her marriage to defendant.  They
visited each other frequently; she always considered her smart and
intelligent; she conducted herself lady-like; she never met her but once
before the marriage, and that was at a party at Dulaney's house.
Thomas D. Barbour knew Mrs. Dulaney six or seven years before, and four
years after, her marriage with defendant.  He never thought she was insane,
and her character for intelligence, and capacity to transact business, was
as good as any lady's in the country.  He was frequently at the house of
defendant after he married, and always thought her sane and intelligent.  He
was at a large wedding party at defendant's, after his marriage, and at a
large party at the house of Mrs. Loomis before the marriage, and on both
occasions she displayed as much intelligence in receiving and entertaining
the company, as any lady of witness' acquaintance.
Leonard B. Lipsey boarded with Mrs. Dulaney six or eight months, in the year
1831.  He always considered her sane, and a woman of better sense than the
generality of women in that country.  She attended to her own household
affairs.  He also, saw her frequently before the marriage, passing from one
*424
plan*tation to another, stopping at the house of witness' father.  She
attended to her own business, and attended to her own overseers.
Lemuel S. Lipsey proves the same facts in substance as the above witness.
Houston Roberts states, that he was a near neighbor of Dulaney, and
distantly related to his wife.  He frequently visited Dulaney after the
marriage, and she visited at his house; she was intelligent, sane, and
competent to transact business.  He was at the wedding of one of Dulaney's
daughters, and his wife Alice superintended the domestic affairs of the
house on that occasion, with as much ability as any lady could.
George Q. Roberts saw her both before and after her marriage, and always
considered her as sane and intelligent as any lady.
C. D. Roberts became acquainted with her after the marriage, and was
intimate with her from that time until 1835.  There was nothing like
insanity about her; on the contrary, she was a very smart and intelligent
woman.  Thomas B. Ives was married on the 2d March, 1826, at the residence
of defendant.  Mrs. Alice Loomis was present as a guest.  Witness had a long
conversation with her.  She was intelligent, prudent and discreet.  He did
not see her again till after her marriage to Dulaney.  He then saw her
frequently for two or three years and occasionally till 1831.  Frequently
visited at the house of Dulaney, and often saw his wife.  He never saw any
thing in her conduct bordering on insanity.
Helen  D. Ives gives in substance the same testimony as the last named
witnesses.
Several depositions were taken, which proved defendant's high character for
honor and integrity as well in Mississippi as North Carolina.  Defendant
also read in evidence a bond executed on the 5th of November, 1822, by Alice
Loomis, and sureties for the guardianship of Nathaniel L. Mitchell, and also
the record of a suit brought in the year 1829, by Dulaney and wife against
Eli W. Ward, the father of complainants, on two bonds made by him, payable
to her before her marriage to Dulaney.  One dated the
*425
14th of November, 1822, *for $793; the other dated on the 1st of June, 1824,
for $1100.  The defendant, Ward, appeared and pleaded to this suit, payment,
set-off, and the statute of limitations.  The last plea was rendered against
him for about $3000.  Subsequently, on the 6th of March, 1832, Eli W. Ward
paid Dulaney $500 on account of this judgment, and Dulaney released the
balance.  Daniel Ambrose proves that this money was advanced by the father
of Eli W. Ward, (Eli being insolvent,) in consideration that Dulaney would
release the remainder.
Such is the substance of the voluminous testimony taken by the parties on
each side of this interesting case.  Can we pronounce after reading it, that
the marriage of Daniel W. Dulaney and Alice Loomis was void, because of her
insanity?  If we look to the marriage itself, aside from other proof, we do
not find such a disparity in age, social position, or fortune, as is
calculated to awaken a suspicion of weakness of intellect on one side and
imposition on the other.  Upon the contrary, the parties had known each
other from infancy.  They had been reared in the same circle of
acquaintance.  Their ages were about the same.  In point of wealth there was
but little difference, and that in favor of the defendant.  Their social
position was equal, being the most respectable in the county of their
residence.  She had been distinguished for industry, economy and
intelligence.  He was the most popular man in the county, and highly
esteemed for honor and integrity, and was esteemed by the friends and
relations of the lady as suitable in all respects for her husband.  The
marriage under such circumstances was not unnatural or unreasonable, and it
must, therefore, require no slight degree of proof to annul or set aside a
contract so equal in all respects, and which in itself has nothing that is
calculated to awaken a suspicion of imposition or unfairness.
But again.  If we look to the witnesses who have testified in the case, and
to all the circumstances connected with it, we think the preponderance of
proof, to speak no stronger, is decidedly in favor of the defendant and of
the sanity of his wife.  But we are told, and the argument is pressed
*426
earnestly *and ingeniously upon us by the very able counsel for the
complainants, that the witnesses for the defence only speak of impressions
and give their opinions, while the complainants' witnesses testify to acts
which are inconsistent with her sanity.  There is great force in this
argument, and we will endeavor to analyze the evidence briefly, in order to
see if it fully sustains the position taken by counsel.
The witness Nathaniel L. Mitchell is chiefly relied upon to sustain this
view of the case.  What are the affirmative acts proved by him, by which the
hypothesis of insanity is to be established?
I.  It is said she conceived an unnatural and incestuous attachment for
Harris Loomis, the nephew of her deceased husband.  Is this fact, if true,
evidence of insanity?  We are not prepared so to pronounce it.  The law of
North Carolina is not in evidence before us, and we cannot say, therefore,
whether a marriage between the parties was prohibited in that state or not.
Our law does prohibit marriages between parties so related to each other,
and in the absence of proof to the contrary , we must presume the same to be
the law of North Carolina.  We are willing to admit that the attachment of
Mrs. Loomis to the nephew of her deceased husband, was immoral, improper,
and very reprehensible, and that a marriage between them would have been
illegal.  Yet we do not know that on the score of morality it was more
objectionable than the marriage of Harris Loomis to two sisters, which it
seems was not prohibited by the laws of North Carolina.
But the argument, that, because the attachment to Harris Loomis was
incestuous and immoral, it was therefore evidence of insanity, is more
plausible than sound.  If it be true, then the criminal code of all
civilized nations, which denounces punishment upon parties guilty of these
offences, is based upon wrong principles; and instead of punishing them as
criminals, should bestow pity upon them as lunatics.  We are not willing to
subscribe to the theory, whose effects in practice would undermine the
foundations of social order and good government.
But the evidence of Mitchell, in relation to this attachment,
*427
*so far from proving the insanity of Mrs. Loomis, tends, in our opinion, to
the reverse.  Prior to the first marriage of Harris Loomis, Mitchell says
she used every effort to win his affection, and being unsuccessful, she
exhibited excessive grief, which was increased by his marriage.  That, on
the death of his wife, she became more cheerful, renewed her attentions to
him, and tried in every way to win his love, endeavoring, by the
accumulation of property, to make herself more acceptable.  On his second
marriage, and her consequent failure to obtain his love, her misery was
rekindled, and her grief increased.  Surely this conduct, instead of
derangement, is evidence of thought and reflection.
But the witness tells, that she abandoned her elegant and finely furnished
house, for one more retired and plainly furnished; dressed in home-made
clothing, and became over-industrious, and going into the fields among her
hands, and coming back covered with dirt and dust.  If we look to the
circumstances surrounding the lady at this period of her life, all this can
be accounted for, without impeaching the sanity of her intellect, in a very
natural and not improbable way.  She had always been remarkable for industry
and economy, and always given her personal attention to her own business,
and about the time referred to by the witness, had become considerably
involved and oppressed with debts.  Harris Loomis, and Eli W. Ward, father
of the complainants, had taken off and sold part of her slaves, as was
proved by the witness, Edward Scott, and this caused her the deepest
distress.  What is there more natural, than that she should have been much
harassed by this condition of her affairs, and should have been seen
frequently in tears, and exhibiting other evidences of grief:  What more
probable and reasonable, than her withdrawal from her finely furnished home,
the resort of the gay and fashionable, to another more distant and retired,
where she could practise the economy and thrift necessary to reinstate her
affairs, and relieve herself from pecuniary embarrassment?  And what more
natural, under such circumstances, than that she would dress more plainly,
and exercise more than her usual economy and industry?
*428
*But again, when we come to the details of the marriage itself, we find
statements by the witness totally inconsistent with the theory he is seeking
to establish, and inconsistent with other parts of his own narrative.  For
instance, he says that his aunt, when the marriage was proposed to her,
pronounced it "Preposterous, absurd; she would hear none of it;" and yet
suffered herself to be reluctantly dragged along before the magistrate,
where she kept up a continued cry of "No! no! never!" &etc.; and when the
usual question was put to her, that "She heard it not, or heeded not if she
heard," but kept up her eternal "No! no! never!" &etc.  Accordingto his own
testimony, however, we find her that evening presiding at the supper table,
and exhibiting signs of cheerfulness; and then he sayus she seemed for the
first time to reflect, and said "she had committed a great folly."  It must
be obvious, if the lady several hours after the marriage took place was
capable of making a reflection of this kind, she could not have been
ignorant of the occurrence at the time.  She must have known the fact that
she was married; and if she knew when it occurred, remembered it afterwards,
and thus commented on it "as a great folly she had committed," the folly
must have received her assent when it was committed.  The statement of the
witness shows then that she had mind enough to know what she did, memory
enough to remember it afterwards, and judgement enough to reflect and
comment upon the matter and character of the act she had committed.  If this
be true, it would seem to follow that she had all the capacity requisite to
the validity of a contract.  Corroborative of this view is the further
statement of the witness, that next day Dulaney took her to his home, and
during the ride of twelve miles "she seemed composed, serious, but
reconciled."
We have thus endeavored, by this analysis of the evidence of the witness
mainly relied upon by complainants, to show that it does not make out such a
case of insanity or incapacity as would justify us in declaring the marriage
void.
In relation to this witness we may remar, and his evidence was evidently
written with a view to produce an effect, and that he permitted his
imagination to give a coloring, in,
*429
accord*ance with a preconceived theory of insanity, to many incidents that
were susceptible of a very different and more probable explanation.  This
may be accounted for to some extent by the fact, that the incidents of which
he speaks mostly occurred between his thirteenth and seventeenth years; a
time of life when he cannot be supposed entirely competent to analyze the
course of conduct which to him may have appeared singular and eccentric, but
which, when the causes were understood, may have been perfectly consistent
with sanity.  It is worthy of remark too, in this connection, that several
of the witnesses state, that the lady was subject to occasional attacks of
hysterics, and it is probable at such times she may have exhibited
eccentricities of conduct which the witness was unable to account for, and
which, to use his own language, "His subsequent investigations into human
nature" induced him erroneously to ascribe to insanity.  Witn regard to the
testimony of Doty, we may remark, that he speaks of no acts, while the
expressions which he says were used, as by-words in relation to the lady,
are not entitled to much weight in this investigation.  We know that they
are common, unmeaning phrases, not unfrequently applied to individuals in
whose conduct any thing extravagant is observed, without any intention on
the part of those using them to impeach the sanity of the persons to whom
they are applied.  It is also probable that the attachment of Mrs. Loomis
for Harris Loomis may have betrayed her into some ridiculous acts, and thus
have given rise to the epithets spoken of by Doty.  The witness, Joseph D.
Ward, speaks of no acts of Mrs. Loomis evincing insanity, but gives it as
his opinion that she was insane, and that Dulaney knew it, inasmuch as he
stated after the separation, that he supposed her peculiarities of conduct
before marriage arose from her pecuniary embarrassments.
The other witnesses of complainants testify to acts which could not in all
probability have escaped the observation of Mitchell, if they had occurred,
and which, from the minuteness of detail exhibited in his deposition, it
seems almost certain he would have stated if they had been known to him.
These witnesses are very ignorant and illiterate,
*430
and it is clear *from their testimony, occupied a social position very
inferior to Mrs. Loomis, and they would, therefore, in all probability, have
had little if any intimacy or association with her.  Several of the women
are proved to have been of unchaste conduct; and while this kind of evidence
is not in itself sufficient to impeach their veracity, yet as it would tend
to show that they could not in all probability have been on terms of
intimacy with Mrs. Loomis, and would not, therefore, have had an equal
opportunity with others differently situated, of forming a correct opinion
in regard to her capacity and intellect, we cannot say that it is entirely
irrelevant.  We think, however, that the testimony of these witnesses, and
also that of Mitchell, may be reconciled with that of the witnesses for
defendants without necessarily impeaching their veracity.  It is proved, as
we before stated, by several witnesses, that Mrs. Loomis was subject to
attacks of hysterics every two or three months.
When we reflect that medical writers of the highest repute state, that
paroxysms of this disease are frequently accompanied with depression of
spirits, a temporary loss of sense and consciousness, and of command over
the muscles of voluntary motion, which are either motionless or violently
and irrationally agitated; the arms and legs being most generally affected,
accompanied with vehement struggles, during which the hands are frequently
struck on the breast, or the head lifted up or struck violently against the
bed or floor; the patients sometimes tearing the hair or otherwise injuring
themselves; sometimes shrieking out in wild cries, and at others bursting
into boisterous laughter.   See 2nd. vol. Cyclopedia of Practical Medicine,
562, 563.  We can at once account for the acts spoken of by these witnesses
in a very natural way, and at the same time in a manner entirely consistent
with the sanity of Mrs. Loomis.  And we can thus reconcile, what might
otherwise seem the contradictory testimony of the witnesses on each side.
This brings us to the consideration of the defendants' testimony, which
establishes facts uncontradicted by the proof of complainants, and which are
entirely inconsistent with the hypothesis of insanity.  Those facts are
these:
*431
*1.  That she was, up to the period of the marriage and afterwards, in the
habit of social intercourse among a large circle of friends, giving and
attending parties, at which she demeaned herself in the reception of company
with elegance and propriety, and conversed sensibly, freely, and familiarly
upon all the topics that presented themselves without evincing any trace of
insanity.
2.  That she attended to her own business of every kind, made contracts for
the employment of overseers, and managed and conducted the affairs of her
plantations up to the period of her marriage, without the aid or assistance
or interference of any one, displaying in the whole of it business capacity,
tact and shrewdness.
3.  That she was appointed guardian of Nathaniel L. Mitchell, in November,
1822; gave bond for the performance of the duties of guardian, and continued
to act as such without complaint, removal, or objection, up to the period of
the marriage.
4.  That she acted as her own housekeeper before the marriage, as
housekeeper for Dulaney while they lived together, and afterwards kept house
for herself, and displayed in the management of her domestic affairs as much
skill, prudence, and capacity as any lady in the community.  To corroborate
and strengthen the whole of which facts, is the further circumstance, that
none of defendants' witnesses, who are very numerous, whose acquaintance
with her was of long standing before and after the marriage, some of whom
are related to her, and all of whom had ample opportunity by means of
intimate association of knowing her character and capacity, every knew,
heard, or suspected from any part of her conduct that she was insane.  Not
the least pregnant circumstance to sustain this view of the case, is the
additional fact that Eli. W. Ward, the father of the complainants, and who,
if she was insane, must, according to the testimony of Doty, have known the
fact, permitted himself to be sued by Dulaney in right of his wife as late
as 1830; and after having pleaded the statute of limitations, withdrew it,
and suffered the defendant to recover a judgment against him
*432
for nearly $3000, without *opposing his right to sue or attempting to resist
a recovery, because of the invalidity of the marriage or the insanity of his
aunt.
Nor ought we to overlook in this connection the fact, that the magistrate
who performed the marriage ceremony was the uncle of the witness Mitchell,
and cannot be supposed to have lent himself without motive to the
performance of an act which excluded his nephew from a large estate, that he
would otherwise in all probability have received.  In view then of all the
facts in this case, taking into consideration the statement of Mitchell,
that the relations of his aunt advised her marriage to Dulaney; that in the
marriage itself there was not that disparity of age, fortune, character, or
social position which should awaken distrust, and the improbability that a
man of Dulaney's character and standing for honor and integrity, would have
connected himself by marriage with a woman known to be insane, without some
more powerful motive than is disclosed in this record; we are constrained to
pronounce that the complainants have not proven the allegations of the bill.
II. If, however, it be conceded that Mrs. Loomis was insane at the date of
the marriage, the question still remains, Was she afterwards sane at any
period before her death, and if so, what effect would that fact have on this
case?
The proof on this point seems to leave no room for doubt.  Mitchell proves
that she had lucid intervals before the marriage.  Doty proves the same
fact.  While Elizabeth Mitchell, Mary Dulaney, Thomas B. Ives, Helen Ives,
Nancy Ambrose, Thomas D. Barbour, Leonard Lipsey and many others prove that
she was entirely sane after the marriage.  These witnesses saw her
frequently and at different times, and never saw the least symptom of
insanity.  Elizabeth Mitchell boarded in the same house with her for six
months, and Leonard Lipsey was a boarder in her house for a like period,
during which she managed the affairs of her household, evincing no insanity.
This proof clearly shows that she was sane subsequent to the marriage.  This
period of sanity is shown to have been while she lived with Dulaney, as well
as after the separation.  If the marriage
*433
was void on account of insanity, *we will not say, that her subsequent
cohabitation with him, after she became sane, would ratify the previous
invalid act, upon the common law rule that consent and cohabitation make a
valid marriage, but we take it for granted that it was a nullity, and void,
and incapable of confirmation.  In this view of the case, Mrs. Dulaney was a
feme sole, and as such it was necessary that she should have asserted her
rights in the manner and according to the rules applicable to every one
else.  And as Dulaney by possessing himself of her property was a
wrong-doer, and acquired no right to retain it, an action for its recovery
immediately accrued to her, and it became necessary for her to assert this
right, according to our law, within six years after the cause of action
accrued, or if insane at that time, within six years after the removal of
that disability.  This she did not do, and as the complainants can assert no
right but through her, if the statute would bar a recovery by her, it will
bar their action also.  Inasmuch, then, as the evidence in our opinion
establishes the fact, that she was sane after the date of the alleged
marriage at least six years before her decease, and commenced no action for
the recovery of the property, we are of opinion that, in this view of the
case, the defendant's pleas of the statute of limitations must be sustained,
and the decree of the chancellor affirmed
Decree affirmed.