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Hackler et al. v. The State, er rel. Coleman et al.

1st. A general denial.
2d. Payment by the justice before suit brought.

The plaintiffs filed replies in denial of each of the foregoing special defences.

The issues were tried by the court without a jury; there was a finding for the plaintiff's for $350; the defendants' motion for a new trial was overruled, and judgment was rendered upon the finding.

The defendants appealed. The error assigned is that the court erred in overruling the motion for a new trial.

The reasons assigned for a new trial are:
1. That the damages are excessive.
2. The amount of the recovery was too large.
3. The finding is not sustained by sufficient evidence.
4. The finding is against the evidence.
5. The finding is against the law and the evidence.

6. The finding is contrary to law because of error of law occurring at the trial, and excepted to by defendant at the time, to wit, in allowing the plaintiffs to introduce evidence to show that defendant had collected money on the accounts and notes mentioned in exhibit B of plaintiffs' complaint, by other than legal process.

The appellants, in their brief, say that the reasons set forth in the first, second, third, fourth and fifth causes for a new trial, are substantially the same. The real question is, whether the finding is sustained by the evidence. We have examined the testimony; there is evidence tending to support the finding, and where that is the case, this court can not weigh the testimony. This rule is so well established, that no decision need be cited in its support.

As to the sixth reason, the first breach alleged was for converting to the use of the justice, and failing to pay over to the plaintiffs, money collected on judgments.

The second breach alleged was for failing to bring suit upon claims which might have been collected by suit.

Neither of these breaches relates to or charges that any money

Fay v. Burditt.

was collected by the justice without process, and it was, therefore, error to admit, over the defendants' objection, evidence of

money collected without process. There was no breach alleged under which such evidence was admissible.

For this error, the judgment must be reversed.

PER CURIAM.-It is therefore ordered by the court, upon the foregoing opinion, that the judgment of the court below be and it is hereby reversed, at the costs of the appellees.

81 433 127 411

81 433 135 204 135 593

81 433 139 74

81 433 145 102 145 680

No. 8556.

FAY v. BURDITT.

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CONTRACT.—Unsoundness of Mind.—The contract of an insane person,

whose disability has not been judicially determined, is voidable only,

and not void. SAME.Disaffirmance.-- When Contract of Insane Person will not be Set Aside.

An insane person, unless his insanity had been judicially declared before the contract was made, has not the same unqualified right, as an infant or married woman, to disaffirm his contract; and when there is nothing in his appearance, conversation or conduct to indicate his mental incapacity, and he makes a contract with one without notice of his condition, which is in itself fair and just, and such contract becomes so far executed that the parties can not be placed in statu quo, the contract will

not be set aside. SAME.-- Chattel Mortgage.— Title to Property.— Possession.— Demand.- Re

plevin.-A chattel mortgage executed by an insane person, whose mental unsoundness has not been judicially determined, will vest the title, and, after default in the condition, the right of possession of the chattel in the mortgagee; and actual possession obtained under it can not be made wrongful without a disaffirmance. In such case, there must be, therefore, a disaffirmance before an action can be maintained to recover the

chattel from the mortgagee. SAME. -Semble, that a party to a contract should not be allowed to disaffirm

on account of insanity, without restoring what he had received, or offering to make compensation therefor, if the other party acted in good faith, and the contract itself was fair.

VOL. 81.-28

a

Fay v. Burditt.

SAME.— Instructions.Burden of Proof.--Shifting of Burden.-In an action by

the mortgagor of a chattel, to recover possession on the ground of his insanity when he made the mortgage, it was not error to instruct “That the plaintiff must have established, by a preponderance of evidence, that he was insane at the time he executed the note and mortgage," nor in refusing to instruct " That if the plaintiff had established by a preponderance of the evidence, that he was of unsound mind prior to the making of the chattel mortgage, then the burden of proof is cast upon the defendant to show that the plaintiffwas of sound mind at the time,"

etc. The burden of proving insanity is on the one who alleges it. Quære, whether it is quite accurate to say that the burden of a particular

affirmative issue ever shifts in the course of the trial from one party to the other. From the Benton Circuit Court. M. H. Walker, D. Smith and I. H. Phares, for appellant. R. C. Gregory and W. B. Gregory, for appellee.

Woods, J.-Complaint in two paragraphs for the wrongful taking and detention of personal property.

The first paragraph is in the common form and need not be further noticed. The principal questions in the case arise upon the alleged error of the circuit court in overruling the appellant's demurrer for want of facts to the second paragraph of answer to the second paragraph of the complaint.

There is a third paragraph which alleges an unlawful conversion of the property, but no question arises under it.

The following are the substantial averments of the second paragraph, to wit: That the plaintiff is the owner and lawfully entitled to the following described personal property (description), which has not been taken by virtue of any writ, etc.; but the same has been wrongfully taken ard is unlawfully detained by the defendant under color of a pretended sham and void chattel mortgage, executed by this plaintiff to the defendant, on the 7th day of January, 1878, to secure the payment of a promissory note of the same date, for one hundred and twenty dollars, payable one year after date; that the plaintiff, when he made the note and mortgage, was of unsound mind and wholly incapable of understanding, and

Fay v. Burditt.

did not understand the nature, purport, contents and meaning of said instruments; that he has now so far recovered the use of his mental faculties as to be able to comprehend the ordinary affairs of life, and to make contracts and to maintain and prosecute this suit in his own behalf; that the defendant well knew that the plaintiff was “ utterly insane” at the time he made said note and mortgage to her, but, for the fraudulent purpose of obtaining his signature to said papers, she combined and conspired with one Lamb, and they by fraud and false representations procured the plaintiff to sign and deliver the note and mortgage, which fraud and false representations were, that the note and mortgage were without consideration, and that the defendant threatened to take and drive away said property and appropriate it to her own use, unless the plaintiff complied with her request, and have him sent to the ipsane asylum ; and but for these things, and his mental unsoundness and incapacity to understand the ordinary affairs of life, he would not have signed the note and mortgage; that they were given without any consideration whatever, and by reason of the premises are invalid. Wherefore he prays that he may recover said property, or if the defendant has disposed of it, then its value.

The answer in question is to the effect, that if the plaintiff was of unsound mind when he made the note and mortgage, the defendant was ignorant of the fact; that at that time the plaintiff appeared to be rational and competent to transact ordinary business; that the defendant had known him for five years or more, and during all that time his soundness of mind was not questioned to the defendant's knowledge until a short time prior to his bringing this suit, and then suspicion of such unsoundness of mind arose only from the publication of the matter by the plaintiff himself; that said note and mortgage were executed for a balance due the defendant from the plaintiff of unpaid rent for sixty-five acres of good farming lands, with buildings, in Benton county, which the defendant had leased to the plaintiff for a term extending from

Fay r. Burditt.

March 1st, 1877, to February 28th, 1878, for 650 bushels of corn or the value thereof in money, payable January 1st, 1878; that the defendant accordingly took and held possession of the farm for the entire term aforesaid, and, in a settlement subsequently made between them, the plaintiff, having chosen to pay the rent in money, made said note for the balance due the defendant; that the plaintiff is a farmer and had always pursued that business for the support of himself and family, and the use and occupation of farm land was to him a necessity ; that in all of the defendant's transactions with him, she acted in good faith, and, the plaintiff having had the full enjoyment of the lease for the time aforesaid, the parties can not now be placed in statu quo. Wherefore, etc.

This answer shows that the note and mortgage were made upon a sufficient valuable consideration; and, aside from the alleged unsoundness of the plaintiff's mind, the charge of fraud, as stated in the complaint, is in terms too general to be of significance. The question upon the demurrer, therefore, comes to this: The plaintiff was of unsound mind, but the fact was not apparent or known to the defendant, who leased him her farm for one year. He took and enjoyed the possession, made a settlement and executed his note to the defendant for the balance of the rent, and to secure its payment executed a chattel mortgage upon the property, which he now seeks to recover. The possession of the defendant was obtained and held solely under color or by virtue of the mortgage, and was rightful, unless the alleged unsoundness of the plaintiff's mind made it wrongful. It is not averred that before bringing the action the plaintiff had made a demand for the property, or had done any other act to notify the defendant that he had elected to disaffirm his note or mortgage.

If the pleader had been content to abide by the general averments of ownership and right of possession in the plaintiff, and the unlawful taking and detention by the defendant, the paragraph would have been good, and the question one

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