Moore

Action to quiet title to certain land on which was a granite quarry. Defendant answered the complaint and set up an instrument executed by plaintiff to him September 25, 1889, by which plaintiff agreed to sell and convey to defendant- *431 the portion of the land containing said quarry, at the expiration of a certain lease, under which the quarry was being worked, which did not expire until 1901. The consideration of the contract was one dollar paid and one thousand dollars to be paid at the expiration of said lease. Plaintiff did not serve and file an affidavit denying the contract. A jury was impaneled to try certain four special issues, to wit: 1. Mental competency of plaintiff to make the contract; 2. Whether it was executed under undue influence of defendant; 3. Through fraud; 4. By mistake. Defendant made no objection to calling the jury nor to the submission of the issues. The jury answered the first three questions, Ho; the fourth, Yes.

Judgment passed for plaintiff quieting her title and adjudging defendant’s contract void and annulling the same, from which and from the order denying his motion for a new trial defendant appeals.

Plaintiff proved title in her and rested.…