144 Ky. 73 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
Eliza J. Hundley, who was the purchaser of certain land sold under decree of court in this case filed exceptions to the report of sale for the purpose of having the court determine whether she acquired title to thé land by the sale.
The only question arising in the case is whether she acquired the title of William Lawson Sumrali to the land. The facts in regard to- the matter are these: In the year 1905, William Lawson Sumrali, an unmarried man, living with his father, J. K. Sumrali, at his home in Boyle county, became insane. His father took him to Philadelphia for treatment by specialists. He failed to improve, and the father then had him removed to Baltimore, Maryland, and placed in a sanitarium there1, where he has since remained, a lunatic, violent and uncontrollable. The father died in January, 1907, leaving a large estate in which William Lawson Sumrali inherited a one-third interest. After his father’s, death it was necessary that a committee should be appointed to receive William Lawson Sumrali’s part of the estate, and look after his interest. Application was made to the Boyle County Court, the Circuit Court not being in session, for an inquest of lunacy. Section 2157, Kentucky Statutes, is as follows:
“No inquest shall be held unless the person charged to be of unsound mind, or an imbecile, or incompetent to manage his estate, is in court, and personally in the presence of the jury. The personal presence of the person charged shall not be dispensed with unless it shall appear, by the oath or affidavit of two regular practicing physicians, that they have personally examined the individual charged to be of unsound mind, or an imbecile, or incompetent to manage his estate, and that they verily believe him to be an idiot or lunatic, or incompetent to manage his estate, as the case may be,
The affidavits of three of the physicians in charge of the sanitarium in Baltimore were filed showing that they were regular practicing physicians, that they had personally examined William Lawson Sumrall, that he was a lunatic, and that his condition was such that it would be unsafe to bring him into court. The county court required a warning order to be made and an attorney appointed who wrote to the lunatic informing him of the proceeding. This letter was delivered to- him. After sixty days had expired the inquest was held and he was adjudged or unsound mind. The Fidelity Trust Company of Louisville qualified as his committee. Subsequently a suit was brought by the other joint owners to sell the land in controversy on the ground that it was indivisible without materially impairing its value, or the interest of the joint owners therein. To this petition William Lawson Sumrall and his committee were made defendants. Process was issued which was served on the committee for itself and for him. The committee filed an answer in which it joined in the prayer of the petition for a sale of the land alleging that it was indivisible and that a sale of it as a whole was to the interest of all the parties. Proof was taken and on final hearing the court ordered the land sold. Eliza J. Hundley, the purchaser at the sale excepted to it on the ground that the inquest above referred to was void, and that William Lawson Sumrall not being brought before the court by process on him in the action to sell the land, the judgment and sale are void. The circuit court held the sale good and the purchaser appeals.
“Our. Civil. Code, section 53, provides, that if a defendant be of unsound mind, the summons shall be served on him, and on his committee, if residing in the*77 county. Under section 490, however, the committee' may, in the name of the lunatic and his own, sue for, and obtain, a judgment for the sale of property owned jointly by the lunatic and others, if it be indivisible; and, if he may do this, we fail to see why, in an action brought by a joint owner against the lunatic under this section of the Code, he may not enter the appearance of the lunatic and his own to the action. If he does so, why the need of serving the summons upon the lunatic? He is incapacitated from defending the action. His committee must do this for him, and where the committee answers in the name of the lunatic and himself, it seems to us it would be needless trouble and an idle ceremony to still require the service of a summons upon the lunatic. The court already has jurisdiction, not only of the subject matter of the action, but of the necessary parties, by the filing of the answer. It should not be presumed the Legislature intended to require the doing of an idle thing.”
We have so held in a number of cases as to infants where their land was sold under a similar proceeding. (Shelby v. Harrison, 84 Ky., 144; Cheatham v. Whitman, 86 Ky., 614; Garr v. Elble, 29 S. W., 317; Bell v. Smith, 71 S. W., 433.) We do not see that the case of a lunatic can be distinguished from that of an infant.
Judgment affirmed.