The opinion of the court was delivered, January 3d 1870, by

The second section of the Act of 16th January 1799, 3 Smith’s Laws 338, made for the purpose of barring entails, enacts that, “ such conveyances and confirmation shall be good and available to all intents and purposes, against any person or persons claiming by virtue of such estate tail or in remainder or reversion after such estate tail, as such grantor, bargainor or vendor might or could have debarred by any mode of common recovery, or by any ways and means whatsoever, previously to such grant, bargain, sale or conveyance any law or usage to the contrary notwithstanding.”

The plaintiff in error argues and cites abundant authority to prove that a common recovery suffered by an infant or a lunatic is effectual against himself and his heirs, and thence draws the conclusion that the Act of 1799 places a deed duly executed, acknowledged, approved and recorded, on the same footing as a common recovery. As to the effect of a valid deed this is true, but that is not the question before us. The court received the evidence, to which exception was taken, to prove the incapacity of the grantor to make a deed; and the true question is whether the making of a deed stands on the same footing as the entering of judgment in a court of record. The reason why the infancy or insanity of a party who suffers a common recovery, cannot be set up against it, is, that it cannot be done without attacking the iudgment of the court, which to every intendment is presumed to *322be regular and valid, until reversed or set aside in due course of law. The judgment of the court is the solemn act of a competent legal tribunal, and cannot be impeached collaterally. It is presumed to have had legal and competent parties before it. But a deed is an instrument in pais, and must have proper parties able to contract and be contracted with. An essential element of this competency, is, that the party be of sane mind. Without this the writing is not his deed, and can be avoided under the plea of non est factum. The defect therefore lies behind the act of executing the writing; and the purpose of the evidence was not to deprive the instrument, as a good deed, of its statutory operation and effect, but was to show that it never had any legal existence whatever as a deed. There was no error therefore in receiving the evidence and the judgment is affirmed.