85 Neb. 115 | Neb. | 1909
This action was commenced in the district court for Otoe county by J. Robin Bonwell, as guardian of the estate of plaintiff Bridget A. Wirth. The controversy involves the title to certain lands in said county. The defendants severally demurred to plaintiff’s petition. Their demurrers were sustained and plaintiff’s action dismissed. Plaintiff appeals.
The points made by the two demurrers are: That plaintiff has no legal capacity to sue; that the court has no jurisdiction of the subject matter; that there is another action pending in which the title to the property in controversy in this action can be settled; that the action was prematurely brought; that the petition does not state facts sufficient to constitute a cause of action.
The petition alleges substantially that plaintiff is the same person who was made defendant in an action commenced against her in the same court on March 25, 1899, by her husband, Valentine Wirth; that the record in said cause shows that at the time said 'action was instituted plaintiff was insane; that she has ever since said time been and is now insane and confined in the 'hospital for the insane at Lincoln; that no general guardian was ever appointed for her until on or about March 27, 1907, when the said Bonwell “was duly appointed guardian of her estate, and that he thereupon duly qualified as such guardian, and is now duly qualified and acting guardian of her estate. Letters of guardianship so issued out of and upon and by the judgment and order of the county court of Otoe county, Nebraska.” These allegations are sufficient to show plaintiff’s capacity to sue.
The record before us shows the following facts, admitted by the demurrers: That plaintiff became the OAvner
“1. That at the time of the purchase of said lands by her, upon August 23, 1875, she was not of unsound mind, nor did she become so for more than ten years thereafter.
“2. That the said plaintiff, Valentine Wirth, did not furnish the purchase price for said property, and that his possession thereof as alleged in said petition was not adverse to her interests, but was with her consent for the purpose of cultivation.
“3. That the taxes thereon during the time alleged in plaintiffs petition to have been paid were paid from the income and produce derived from said lands as the result of the labors of both the said Valentine Wirth and herself.
“4. That the statute of limitations had run against any claim of ownership either in law or in equity in said lands by the said plaintiff, Valentine Wirth.
“5. That by laches all claim or any interest in said lands by the said plaintiff adverse to the interests of this petitioner had been .barred.
“6. That said petition failed to state a cause of action and was insufficient to support a decree thereof because of the fact that, as appears upon the face of said petition, the trust estate therein claimed was not evidenced in any manner in writing signed by this petitioner, and his estate therein as claimed was void under and because of the statute of frauds.”
The prayer of the petition is that all proceedings in the action begun by Florian Wirth for partition of said estate be stayed until the final determination of this action, and that in the action commenced by Valentine Wirth the
That an appeal from the decree complained of would, had a proper record been preserved, have been successful is clear. It was the duty of the court, as well as of the guardian ad litem, to see that the interests of the insane defendant in that suit were fully preserved in every respect. The fact that the guardian ad litem was guilty of laches cannot be imputed to the insane person whom he was supposed to represent. Under the circumstances alleged, the guardian ad litem should, at least, have preserved a bill of exceptions, and filed the same with the clerk of the court. In such case, if he failed to prosecute an appeal, the plaintiff could, within the statutory time after recovering from her insanity, if she ever did so recover, prosecute the appeal, or her legal guardian could do so in her behalf. Such precautionary steps not having been taken in her behalf, she is now remediless if an action such as is here being prosecuted in her behalf will not lie. A court of equity is invested with the inherent power to grant relief under such circumstances. But it is insisted that the action was prematurely brought; that, conceding that plaintiff would be entitled to have the judgment complained of opened up and be permitted to defend in the event of her again becoming sane, no such action could be maintained prior to that time. This contention is based upon section 17 of the code, which provides : “If a person entitled to bring any action mentioned in this title, * • * * be, at the time the cause of action accrued, * * * insane, * * * every such person shall be entitled to bring such action within the respective times limited by this title after such disability shall be removed.” Commenting upon this section of the statute,
The point that there is another action pending in which the title to the property in controversy can be settled is not well taken. The pleader doubtless has reference to the partition suit instituted by defendant Wirth. In that suit defendants here are both claiming as devisees of Valentine Wirth, and resting their claim upon the decree entered in favor of their devisor on May 11, 1899. That judgment being regular upon its face could not be assailed collaterally in the partition suit. If plaintiff can prove the allegations in her petition, the decree entered against her on May 11, 1899, in the suit of her husband, Valentine Wirth, against her, should be opened up, and she should be permitted to answer and make her defense thereto.
The judgment of the district court is therefore reversed and the cause remanded for further proceedings in harmony herewith.
Reversed.