86 Ind. 191 | Ind. | 1882
The appellee, as guardian of Martha Collier, insane, brought this action to set aside a conveyance of real estate, alleging, that, on the 21st day of July, 1868, the said Martha was, in a regular proceeding had for the purpose,
The appellant Catharine filed a separate answer in eight paragraphs; which need not be separately stated, but which show, in substance, that the adjudication of insanity was in July, 1868; that in 1873 said Martha married Thomas White, and was thereafter known as Martha White; that on the 26th day of April, 1873., she received a conveyance to herself by that name of the land in question; that on the 22d day of October, 1873, her guardian Herod made a final settlement report, which was approved, and he was discharged from the guardianship; that the guardianship was so terminated, and, in fact, no guardianship existed over said Martha from Herod’s discharge, in 1873, to the year 1880; that, during the time when there was no guardianship, the said appellant, without knowledge or notice of any disability, bought the land in good faith, paying full value therefor.
The court sustained a demurrer for want of facts to the answer, and the question is whether the ruling was right.
The first proposition advanced by the appellant is, in substance, that the contract of a person who, under the statute (2 R. S. 1876, p. 598), has been found and adjudged to be of unsound mind, but, at the time of making the contract, is not under actual guardianship, is not void, but only voidable. In support of this, counsel for the appellant cite from the opinion
The cases referred to, which were decided by this court, did not involve, and are, therefore, not authority for, the distinction which we are now asked to declare. The question seems to be a new one in this State, and probably must be determined as a question of statutory construction rather than purely by principle or by authority alone.
By the second section of the acton the subject, cited supra, the forming and trial by jury of an issue is required; and by the third section it is provided that if the jury shall find that the person is of unsound mind, the court shall appoint a guardian for such person, who shall have the custody of his person and the management of his estate. Sections 9,10 and 11 of the act are as follows:
“ Sec. 9. Such guardianship shall terminate with the restoration to reason, or death of the ward.
“Sec. 10. Whenever it is alleged that such person of unsound mind has become of sound mind again, the fact may be tried and determined in the same manner as the allegation of the unsoundness of mind. * *
“Sec. 11. Every contract, sale or conveyance of any person, while a person of unsound mind, shall be void.”
In our opinion these provisions must be construed to mean that the incapacity or disability once found and adjudged must continue in full force until in the manner provided in the act
It necessarily follows that there is no place for the proposition that there must be an actual personal guardianship in order to make the disability of the ward complete under the law. It is true that upon the finding of the jury that the person is of unsound mind, it is the duty of the court to appoint a guardian, and the fact of there being such a guardian in charge of the person and estate of the ward may, as counsel argue, be a means of notice and protection to those who might have dealings with the ward; nevertheless, we are convinced that the rule is, and that it would prove unwise and disastrous to hold the contrary, that the adjudication of insanity, or as the phrase is, “ office found,” establishes the incapacity, and keeps it in force until there has been a judicial determination to the contrary; and of such adjudication, had in the proper court, with jurisdiction properly acquired, the world must take immediate and constant notice until the restoration of reason shall in like manner have been declared.
■ The fact that there may not at any time be an acting personal guardian can not be allowed to affect the rule. After the adjudication of insanity, there may often be necessary and protracted delay before a suitable person can be found to accept the trust; and so upon the resignation or death, or removal of one who has been acting. It is a mistake, however, in any such case, to say that there is no guardianship. From the time
While this conclusion is deduced from the language of the statute, it is -also well supported by authority. L'Amoureux v. Crosby, 2 Paige, 422 (22 Am. Dec. 655); Wadsworth v. Sharpsteen, 8 N. Y. 388; Wadsworth v. Sherman, 14 Barb. 169; Fitzhugh v. Wilcox, 12 Barb. 235; Leonard v. Leonard, 14 Pick. 280; Imhoff v. Witmer’s Adm’r, 31 Pa. St. 243.
In respect to a lunatic’s capacity to make a will, a distinction is recognized in some cases, in which it has been held that the inquisition is not conclusive evidence of incapacity in that particular. Leonard v. Leonard, supra; Wadsworth v. Sharpsteen, supra; Breed v. Pratt, 18 Pick. 115; Stone v. Damon, 12 Mass. 488.
Counsel for the appellant insist that their position is directly and explicitly supported by the cases cited supra, from Wisconsin and Texas. The Wisconsin case can not be regarded as deciding anything upon the point, either expressly or by implication; and if the other case is more explicit we • can not accept it as authority against what we deem to be the proper interpretation of our statute, as well as the better reason and policy.
Counsel next insist that the formal discharge of Herod as - guardian, upon his report that his ward had intermarried with White, and that, with the consent of White, he had turned over to her her property, was in effect a termination of the guardianship, and an adjudication of restored reason, upon which the world had a right to act. We do notthinkso. The court had a right to discharge Herod from the trust, but his application for such discharge could not be made the means of bringing before the court the question whether or not there had been a restoration of the ward’s reason. The statute pro
It is next insisted that by reason of the marriage.of the ward and the change in the name by which she was known, and the fact that the property was conveyed to her after the marriage and in her new name, the appellant could not, and' was not bound to, know of the guardianship and disability declared under the former name. No authority is cited, and it is evident that the proposition is untenable. The authorities already cited show that an inquisition and judgment of insanity affect the person concerned, in respect to notice, just as a judgment in rem affects the thing, and that, for reasons of public policy, the world must take notice of the procedure. The ends sought to be accomplished can not be attained upon any other rule. . It necessarily follows that the change of name in this instance in no manner affected the disability or the notice which the appellant.was bound to take of it. Indeed, the marriage, according to some of the cases, was a nullity, and, upon proper application, would be so declared by the court.
Judgment affirmed.