Clarke v. Knight

• Decision Date: 26 October 1922
• Citation: 94 So. 665,84 Fla. 468
• Parties: CLARKE v. KNIGHT et al.
• Court: Florida Supreme Court

94 So. 665

84 Fla. 468

CLARKE v. KNIGHT et al.

Florida Supreme Court

October 26, 1922

Suit by Sarah L. Clarke, by Gustave A. Hanson, her next friend against Andrew J. Knight and others. From an order dismissing the suit, plaintiff appeals.

Reversed with directions.

Syllabus by the Court

SYLLABUS

Defendant appearing specially to attack summons must move to quash before rule day. When a summons in chancery under chapter 7838, Laws 1919, is in due form and served upon the defendant, who appears specially for the purpose of attacking the summons or the service of it, the defendant is required to make the motion to quash the writ or the service before the rule day upon which, under the statute, he is required to plead, answer or demur to the bill.

Law providing for suit by idiots and lunatics by guardian held not to apply to person of unsound mind before adjudication. Section 2562, Rev. Gen. St. 1920, which provides that an infant may sue by next friend, and in all cases whatsoever idiots and lunatics by their guardians, does not apply to persons of unsound mind before they are adjudged to be insane.

Person of unsound mind through infirmities of age may sue by next friend. An aged person who because of infirmities of age or other physical weaknesses is of unsound mind, and not capable of understanding the nature and effect of her business transactions, may sue by next friend appointed by the court for relief against her improvident contracts into which she may have been misled to her injury.

Guardian appointed for person of unsound mind during suit by next friend has no control thereof. When a suit in equity is brought by an aged person alleged to be of unsound mind, but who has not been adjudged to be a lunatic, and a next friend has been appointed by the court to conduct such suit, and during the pendency of the suit such person is adjudged to be a lunatic and a guardian of her person and estate appointed such guardian has no control of the suit begun by the next friend, and should take no part in it.

Guardian of person adjudged insane after suit by next friend not permitted to waive rights of ward not control suit. The guardian of an insane person who was adjudged to be insane after she had by a next friend duly appointed commenced a suit in equity for relief against contracts to her injury into the making of which she is alleged to have been misled, will not be permitted to waive the rights of his ward in such litigation and control the suit instituted in thr behalf.

Appeal from Circuit Court, Hillsborough County; F. M. Robles, judge.

COUNSEL

Shackleford & Shackleford, of Tampa, for appellant.

Mabry, Reaves & Carlton, Sparkman & Knight, and James F. Glen, all of Tampa, for appellees.

OPINION

ELLIS J.

In May, 1921, Sarah L. Clarke, by her next friend, Gustave A. Hanson, exhibited her bill in chancery in the circuit court for Hillsborough county against Andrew J. Knight and the Penn Mutual Life Insurance Company, a corporation.

The purpose of the bill was to obtain an accounting from Andrew J. Knight for rents and profits from certain real estate which it was alleged he had obtained from the property, the control and possession of which it was alleged he had fraudulently obtained, and to cancel a certain deed of conveyance made to him by the complainant in August, 1918, purporting to convey the property described in the bill, which, it is alleged, was valued at about $800,000, and to cancel certain promissory notes executed by the defendant A. J. Knight and the complainant and Jules A. Knight to the Penn Mutual Life Insurance Company for a sum aggregating $250,000, and to cancel a certain mortgage given to secure said notes and executed by the complainant in conjunction with the said defendant A. J. Knight and Ruby M. Knight, his wife, and Jules A. Knight and Florence Knight, his wife, upon certain parcels of land described in the bill, and for general relief.

In substance the bill alleges:

That Sarah L. Clarke is an aged person, about 81 years of age, is of unsound mind and incapable and incompetent of managing her own estate or of comprehending or attending to her business affairs generally, and that such has been her mental condition for more than five years. That her mental infirmity was occasioned by her advanced age and other concurrent causes. That in August, three years before the filing of the bill, she was seized in fee simple and possessed of certain lands in Hillsborough county described in the bill and alleged to be of $800,000 value.

That Andrew J. Knight married the daughter of the complainant in 1877 and resided with his wife in complainant's home until September, 1918. His wife, the daughter of complainant, died in May, 1908, and the defendant married again in the city of New York about October, 1918, one month after he had ceased to reside in the home of the complainant.

That the defendant prior to his marriage with complainant's daughter had been in the employment of complainant's husband, Edward A. Clarke, and was in his employment until the time of his death in November, 1886, and that both complainant and her husband reposed great confidence in the ability and integrity of the defendant. That the defendant, by reason of his association and intimate relation with the complainant, knew of her mental condition, and knew that she was incapable of attending to her affairs or of making any contract concerning her property, and that such was her mental condition in August, 1918, and prior thereto.

That upon the death of complainant's husband the defendant, as the trusted friend and employee of complainant's husband, took charge and management of all the property and business of complainant, and from the date of the death of complainant's husband up to the present time has continued in the managenent of said property. That complainant reposed entire confidence and faith in the defendant, and, believing in his representations and pretenses, executed to him, at his request, in August, 1918, while he was still living in complainant's home and was a trusted agent and advisor of complainant, a deed of conveyance to all her property described in the bill for an alleged consideration of $1 and other valuable considerations.

That the reason given by the defendant to the complainant for the execution of the deed was that he desired to prevent his son, Clarke Knight, from obtaining possession of the property and from interfering with it or from squandering the same. That the only persons present at the time of the presentation by him to the complainant of the instrument of conveyance were Sarah V. Knight, an infant under 21 years of age, defendant's daughter, and granddaughter of the complainant, Florrie Allen, who was living in complainant's home as a member of the family and F. C. Frazee, a notary public whom the defendant had brought to complainant's home for the purpose of taking her acknowledgment to the instrument.

That the claimant acceded to the defendant's request and executed the instrument. although by reason of her mental condition she was incapable of understanding the character of the instrument or the effect of its execution by her, and that the defendant knew at the time of the complainant's mental incapacity. That the complainant, by reason of her mental condition, and not being able to understand the meaning and effect of her act, and because of her confidence and faith in the defendant, without questioning his motives, and believing in his representations that he would not regard the property as his own, but merely wished to protect it from his son, Clarke Knight, executed the deed. That the defendant's representations as to his motives and purposes were untrue, and that his statements and representations to the complainant were false and made for the purpose of inducing her to convey the title of the property to him.

That subsequently to the date on which the deed was executed, during the month of September, 1919, the defendant procured the signature of the complainant to the promissory notes mentioned in favor of the Penn Mutual Life Insurance Company, also the execution by her of a mortgage covering certain described property as security for the payment of said notes. That the mortgage was signed jointly by the defendant, his wife, Jules A. Knight and his wife, and the complainant. That the complainant was ignorant of the contents of the notes and the mortgage and incapable of understanding their contents, but that she executed them merely because the defendant requested her to do so. That she received no consideration for the same, that the mortgage was not executed by her in the presence of any subscribing witnesses and never acknowledged by her, although it appears upon its face to have been signed by her in the presence of witnesses and her acknowledgment made before a notary public.

That the Penn Mutual Life Insurance Company made the load for which the notes and mortgage were given to Andrew J. Knight, the defendant, and that the agents of the Penn Mutual Life Insurance Company knew the complainant and had known her for a number of years, and were perfectly familiar with her mental condition, and knew that she was of unsound mind, incapable of executing a valid contract of any kind at the time the notes and mortgage were signed by her.

That at the time of these transactions the complainant had not been adjudged to be of unsound mind by any court, nor had any guardian been appointed to take charge of either her person or estate.

It appears from the record that Gustave A. Hanson, next friend of the complainant, Sarah Clarke, is the husband of Florence Knight Hanson, who is a daughter of the defendant Andrew J Knight, and it appears from...