53 Mo. App. 667 | Mo. Ct. App. | 1893
— This action is brought to recover a balance due on a promissory note, executed by the defendant on January 1,1888, and payable to the plaintiff’s testator. The note was secured by deed of trust, and the balance sued for is the residue after exhausting the security. The defense interposed by Henry Wessell, as guardian of the person and estate of the defendant, was that at the date of the execution of said note the defendant was a person of unsound mind and incapable of managing his own affairs, and not of sufficient strength of mind to transact his ordinary business. The court, upon the trial of the cause, declared that certain records, introduced by the defendant’s guardian to establish the fact of insanity, were conclusive on that question. It, therefore, ruled out all evidence which the plaintiff offered, to rebut the proof of insanity contained in these records, and directed the jury to find a verdict for the defendant. The plaintiff, appealing, complains of these rulings of the court.
It appeared by the first record offered in evidence that, on July 17, 1871, the county court of Cape Oirardeau county adjudged the defendant insane and
This error, however, in view of subsequent proceedings was non-prejudicial. It appeared that the defendant was, in November, 1872, again brought before the county court upon an information as to his sanity. The inquiry upon this second information was tried by a jury as required by statute, who found from the testimony that “August Wessell is insane;” whereupon, as the record recites, the court adjudged that August Wessell was not restored to his sanity, and incapable of managing his own affairs. This record was read without objection, and was sufficient to establish an adjudication of lunacy. The objection now urged, not to its admissibility but to its probative force, is the informal verdict of the jury, on which it is claimed the court had no power to appoint a guardian under section 5, page 235, of the General Statutes of 1865, then in force. The verdict was unquestionably informal, yet a finding of insanity sufficiently implies an incapacity on the part of the lunatic to manage his own affairs, so as to warrant the appointment of a
The defendant also, gave evidence that, at the November term, 1873, of the probate court of Gape Girardeau county, the guardian appointed for the defendant was finally discharged. It nowhere appears, however, that any inquiry was ever had adjudicating upon the subsequent sanity of defendant, and his guardian appears to have been discharged only because the funds of the estate were exhausted. The note in suit was executed in January, 1888, when the defendant had-no guardian, but in April, 1889, the present guardian was appointed for the defendant upon the authority of the former records establishing his lunacy, thus negativing any inference of his intermediate official restoration.
The rule at common law is that insanity once proved to have existed is presumed to continue, unless it was accidental or temporary in its nature, as where it was occasioned by violence or disease. 2 Greenleaf on Evidence, sec. 371; Hix v. Whittemore, 4 Metc. (Mass.) 545; Shelford on Lunacy, 275 (2 Law Lib. 175). The plaintiff offered no evidence that the defendant’s insanity in this case was due to temporary causes. The rule under the statute makes this presumption conclusive in the case of an adjudication of lunacy, as was held by the supreme court in Rannells v. Garner, 80 Mo. 474. In that case Sherwood, J., cites with approval Imhoff v. Whitmer, 31 Pa. St. 243, where it is
We have not lost sight of the distinction between executory and executed contracts of insane persons, which is recognized at common law, and which measurably must be recognized under the statute likewise. Insanity is no shield for fraud and cannot be used as such. Where the insane person receives value for his promise, his guardian must return the value in repudiating the promise. 2 Greenleaf on Evidence, sec. 369. In the case at bar, however, it does not appear what value, if any, was received by the defendant for the promise, except a statement in respondent’s brief that the note was given in payment for the land which was sold out under a deed of trust, leaving the balance sued
The judgment is affirmed.