154 Ind. 370 | Ind. | 1900
Appellant began this suit to foreclose a mortgage executed to it in June, 1889, by Kerlin B. Sellers on lands in Wells county. Appellee Richard P. Sellers filed a cross-complaint in two paragraphs to foreclose a mortgage on the same land executed by Kerlin B. Sellers in March, 1860. Appellant’s demurrer to the cross-complaint was overruled. Answer of general denial, of payment, and of release of appellee’s mortgage. Reply of general denial of payment and release, and of an argumentative denial of payment. Appellee Richard P. Sellers did not answer appellant’s complaint. There were various pleadings by other parties, but no question arises respecting them. Special finding of facts and conclusions of law. Decree, foreclosing appellee’s mortgage. Appellant’s motion for a new trial overruled. The errors assigned involve the cross-complaint of Richard P. Sellers, the conclusions of law, and the motion for a new trial.
Cross-complainant’s want of capacity to maintain his suit affirmatively appears; but, as the demurrer assigned only the want of sufficient facts, the defect was waived. §339 R. S. 1881 and Horner 1897, §342 Bums 1894; Wade v. State, 37 Ind. 180; Edwards v. Beall, 75 Ind. 401.
It is thoroughly settled in this State that the executed contract of an insane person, who is not under guardianship
Until disaffirmed, the voidable executed contract, in respect to. the property or benefits conveyed, passes the right or title as fully as an unimpeachable contract. By ratification, it becomes impervious; by disaffirmance, a nullity. And as such a contract may be ratified, .whether the beneficiary was ignorant of the grantor’s' infirmity or obtained the benefit by means of his knowledge of the disability, so, in either case, disaffirmance is necessary in order to reduce the contract to nothingness. Schuff v. Ransom, 79 Ind. 458; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Ashmead v. Reynolds, 127 Ind. 441; Louisville, etc,, R. Co. v. Herr, 135 Ind. 591.
In this suit the cross-complainant, an insane person not under guardianship, asked the foreclosure of a mortgage which the first paragraph of his pleading affirmatively showed had been released by him. The pleading discloses grounds on which the release might be disaffirmed. But no disaffirmance is pleaded. Until disaffirmed, the release stood as a voidable executed contract, — not a void one; and this paragraph of cross-complaint, therefore, disclosed no right of action. Nichol v. Thomas, 53 Ind. 42; Schuff v. Ransom, 79 Ind. 458; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; College v. Wilkinson, 108 Ind. 314; Ashmead v. Reynolds, 127 Ind. 441; Louisville, etc., R. Co. v. Herr, 135 Ind. 591; Thrash v. Starbuck, 145 Ind. 673. The same rule,
In this paragraph not only is there a failure to allege disaffirmance, but there is a direct disclosure of the incapacity of the cross-complainant to disaffirm. Nichol v. Thomas, 53 Ind. 42; Louisville, etc., R. Co. v. Herr, 135 Ind. 591.
The second paragraph of the cross-complaint set forth the same facts as the first, except that it contained no reference to the release. The answer pleaded the release. The reply was a general denial. As appellant’s demurrer was addressed to the cross-complaint as an entirety, there was no available error in overruling it, since the second paragraph was good. But under the issues formed on this paragraph, the errors that were embodied in the' first paragraph were carried throughout the trial. In the special finding and in the evidence, no disaffirmance is shown, but a want of capacity to disaffirm is disclosed.
Judgment reversed, with directions to sustain appellant’s motion for a new trial.