Boyer v. Berryman

• Decision Date: 29 April 1890
• Docket Number: 14,031
• Citation: 24 N.E. 249,123 Ind. 451
• Parties: Boyer v. Berryman
• Court: Indiana Supreme Court

24 N.E. 249

123 Ind. 451

Boyer v. Berryman

No. 14,031

Supreme Court of Indiana

April 29, 1890

From the Montgomery Circuit Court.

Judgment affirmed.

M. E Clodfelter, J. A. Lindley, L. V. Maxedon and H. D. Vancleave for appellant.

W. T Brush, for appellee.

OPINION

Elliott, J.

The appellant in his cross-complaint asserts title to the real estate described in it, and the appellee, who had brought an action for possession, dismissed his complaint and the cause was tried upon the issues joined on the cross-complaint.

The appellant requested the court to direct the sheriff to fill vacancies in the jury by summoning persons outside of the court room, but the request was denied. In this there was no error.

The record and proceedings in a former action between the parties were properly admitted in evidence. The court in which the action was tried had jurisdiction of the subject and of the parties, and the judgment was not void even if it be true, as the appellant asserts, that the court erred in referring the controversy to a master commissioner or referee. Where there is jurisdiction of the subject and of the parties, a judgment is not void, although the record and proceedings may abound in errors.

The second instruction given by the court reads as follows: "If the plaintiff, Boyer, was insane at the time he executed the deed in question (if he did execute it), that fact alone would not enable him to set it aside. The deed of an insane person is not void, unless such person has been adjudged to be insane by a court of competent jurisdiction. It is only voidable, and it depends upon other circumstances whether it can be avoided or not. If Berryman paid Boyer a valuable consideration for the deed, and at the time had no knowledge of his insanity (if he was insane), and there was nothing in his appearance or conversation to indicate that he was insane, and the contract was fair, then he would have no right to have the deed set aside without returning, or offering to return, to Berryman the consideration received from Berryman for the deed in question." There was no error in giving this instruction. It is now settled by our decisions that a deed of a person of unsound mind, made before office found, to one who has no knowledge of the grantor's incapacity is only voidable, and that, in order to avoid it, the consideration received must be tendered to the grantee. Fay v. Burditt, 81 Ind. 433; Copenrath v. Kienby, 83 Ind. 18. The doctrine of our cases is well sustained by the decisions of other courts. Elston v. Jasper, 45 Tex. 409; Pearson v. Cox, 71 Tex. 246 (10 Am. St. R. 740, 9 S.W. 124); Riggan v. Green, 80 N.C. 236 (30 Am. R. 77); Eaton v. Eaton, 37 N.J.L. 108 (18 Am. R. 716); Hovey v. Hobson, 53 Me. 451 (89 Am. Dec. 705); Hovey v. Chase, 52 Me. 304 (83 Am. Dec. 514); Allis v. Billings, 6 Met. 415 (39 Am. Dec. 744); Gribben v. Maxwell, 34 Kan. 8, 7 P. 584.

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