37 Neb. 6 | Neb. | 1893
On the 12th day of November, 1889, one John Paulsen, who was then the owner of a farm lying in Gage and Pawnee counties, which had for some years been occupied as a homestead by Paulsen and wife, conveyed said farm to Lyman W. Allgire, Paulsen’s wife joining in the conveyance, and received in return certain lots in Blue Springs and in Wymore. On November 20, 1889, Allgire conveyed the undivided one-half of the Paulsen farm to the ■defendant Mowry. In February, 1890, Paulsen was adjudged insane, and the plaintiff Dewey was appointed his guardian. Dewey, within a few days of his appointment, instituted this 'action against Allgire, Mowry, and Lena Paulsen, the latter being the wife of John Paulsen, for the purpose of setting aside the conveyance to Allgire upon the ground that Paulsen was insane at the time of its execution. A decree was rendered in accordance with the prayer of the petition, finding all the material facts for the plaintiff, vacating the conveyances from Paulsen and wife to Allgire •and from Allgire to Mowry. It appeared in evidence that immediately after the exchange was made Paulsen and wife separated, and conveyances of the Blue Springs and Wymore property were made, whereby what was estimated as one-half in value thereof was conveyed to Lena Paulsen.1 The decree ordered a reconveyance of all of this property. The case was brought to this court upon appeal by Allgire j •and Mowry.
The questions, involved in the case are discussed in the i briefs under a number of heads. For the purposes of thisj opinion all these questions classify themselves within five \ topics.
At the common law an inquisition founded upon a commission de lunático inquirendo, resulting in an adjudication of insanity, was held to be in all cases prima facie-evidence, and sometimes conclusive of the insanity of the person charged. This was upon the ground that such a proceeding was in the nature of one in rem to determine the status of the party, and was therefore binding upon the
This leads us to a consideration of the question whether the evidence, aside from the insanity proceedings, was sufficient to justify the finding of the court, for if it was, the decree should not be disturbed. It .has been repeatedly held that error cannot be predicated upon the admission of immaterial testimony in a case tried to the court where the evidence otherwise justifies the finding.
2. Before examining the evidence, however, a question is presented as to the degree of mental incapacity which must exist in order to avoid a conveyance. In the case of Mulloy v. Ingalls, 4 Neb., 115, this court held that in the absence of fraud, mere imbecility or weakness of mind in a grantor, however great, will not avoid his deed, unless there be evidence to show a total want of reason or under
3. Measured by this test the evidence is ample to sustain the finding of the trial court. It appears that Paulsen •came to Nebraska a number of years ago, bought the farm in controversy, and for several years conducted if in a profitable and apparently skillful manner. In 1886 he became the victim of a delusion to the effect that he constantly carried about with him a man who rode upon his shoulders and controlled all his actions. This was unmistakably an insane delusion which continued to possess him for years. He became sullen and morose, refusing to speak to his neighbors, and forbidding his wife to visit them. In 1889 he suddenly became a religious enthusiast, going many miles alone to church, and in one instance, at least, persisting in remaining in the church throughout the day after the service was concluded. At times he worked industri
4. It is claimed that no decree can be rendered as against the defendant Mowry, for the reason that he was a bona fide purchaser from Allgire without notice of Paulsen’s insanity. The trial court found that he was not a bona fide purchaser, but whether he was or not the deed should be vacated as against him. It is not a question as to whether the deed of an insane person is void or merely voidable. The cases declaring such a deed voidable are those wherein the question was one of affirmance or ratification. While some authorities hold that an executed contract made fairly, and upon adequate consideration, with an insane person, but without notice of his insanity, cannot be rescinded;
5. Some argument is based upon the fact that the farm was a homestead, and that Lena Paulsen joined in the conveyance. It was charged in the petition-that she did so under duress from her husband. We think the evidence is not sufficient to show duress, but that question is not material. The homestead can only be conveyed by an instrument executed and acknowledged by both husband and
The decree of the district court is right and is
Affirmed.