127 Ala. 577 | Ala. | 1900
One. of the essential elements to the validity of a contract is the concurring assent of tAvo minds. If one of the parties to a contract is insane at the time of its execution, this essential element is Avantiug. The principle is the same AAdietlier the contract
The question of insanity i-s one of fact, and should be left to the determination of the jury. There was evidence tending to show that the grantor in the deed relied upon by the plaintiff for recovery was, at the time of its execution, of unsound mind and incapable of entering into a contract. Upon this question there was a conflict in the evidence, and the-court therefore erred in giving the affirmative charge for the plaintiff..
In the statutory action of ejectment to try titles, in the nature of an -action in ejectment, the suit should be brought in the name of the party having the legal title. The present action was originally commenced by summons and complaint in the name of Frances Powe, by her next friend, Alice Powe, and was in form the -statutory action of trespass to try titles. After entering upon the trial of the cause, upon issue joined upon the plea of “not guilty,” the plaintiff’s -evidence showed that the legal title to the lands in dispute was not in Frances Powe, but ivas in Alice Powe, as trustee, etc. Thereupon the plaintiff, by leave of the court, but against the objection of defendant, was permitted to amend his pleading by striking out the original complaint and introducing the common law form of ejectment, laying two demises, one in Frances Powe by her next friend Alice Powe, and another in Alice Powe, as trustee, etc.
We think it plain that the suit as originally commenced in the name of Frances Powe as the real plaintiff could not have been amended by striking out this party as plaintiff and inserting Alice Powe as the sole plaintiff of record. To allow the form of amendment as adopted in this case by the plaintiff in introducing the common law form of ejectment would be to permit that to be done indirectly by the pleading which could not have been done by a direct mode. Under the common law form of ejectment introduced into the pleading, the plaintiff is without limitation in laying his demises, and each demise laid is a separate and distinct count, and the plaintiff would be allowed to recover upon any one'of the demises laid if sustained by'evidence. Or, in other Avords, if the evidence showed the legal title to be in any party in Avhom a demise was laid, the plaintiff would be entitled to recover, and thereby, by this manner and form of amending his suit of a trespass to try title under the statute, to effect a recovery through a plaintiff not a party to the original suit and who could not have 'been substituted by the mere adding of his name to the original complaint and striking out the
Reversed and rendered.