Craft v. Simon

• Decision Date: 28 June 1898
• Parties: CRAFT v. SIMON.
• Court: Alabama Supreme Court

24 So. 380

118 Ala. 625

CRAFT v. SIMON.

Supreme Court of Alabama

June 28, 1898

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action of ejectment by Jetta Simon against John N. Craft. There was a judgment for plaintiff, and defendant appeals. Reversed.

Head J., dissenting.

This was a statutory action of ejectment, brought by the appellee Jetta Simon, against the appellant, John N. Craft, to recover a certain lot of land in the city of Mobile. After pleading the general issue, the cause was tried upon an agreed statement of facts, which were, so far as is necessary to be stated here, substantially as follows: The plaintiff, Jetta Simon, entered into the possession of the real estate which is the subject of this litigation on May 23, 1872, under a deed of conveyance, and continued in the actual, exclusive and adverse possession of said property, claiming the same as her own under said deed, until May 6, 1889. The defendant, John N. Craft, entered into possession of the said property under a deed executed to him on May 17, 1889, by Henry Simon and wife. Henry Simon obtained title to the land under a deed executed to him by Ralph G. Richard, purporting to act as the guardian of Jetta Simon, which deed was executed on May 11, 1889. The defendant, John N. Craft, had held possession of the property from the time of his entrance under the deed from Henry Simon up to the institution of this suit. There was introduced in evidence a full, true, and exact copy of all the proceedings in the probate court of Mobile county under which it was claimed that Jetta Simon was declared non compos mentis, and Ralph G. Richard was appointed her guardian, and, as such, was authorized to make said conveyance from Henry Simon, from whom the defendant, John N. Craft, purchased the property. These proceedings were commenced by a petition filed in the probate court of Mobile county, duly verified by the oath of the applicant, and which was as follows: "To the Honorable Price Williams, Judge of Said Court: Your petitioner, Ralph G. Richard, respectfully represents unto your honor that he is a friend to one Jetta Simon, and of her family; that said Jetta Simon is a female of the age of forty-nine years, and resides at Mobile, and is of unsound mind, and incapable of governing herself, or of conducting and managing her affairs. Wherefore your petitioner prays your honor to take cognizance of the matter of this his petition, and appoint a day for hearing the same, and that such proceedings may be had as shall be necessary and proper to determine, according to law in such case made, whether or not the said Jetta Simon is a person of unsound mind. [Signed] Ralph G. Richard." On the filing of this petition, the following order was made by the court: "This day came Ralph G. Richard, and filed his petition in due form and under oath, alleging that said Jetta Simon, a female resident of this county, and of age, is of unsound mind, and incapable of taking care of herself or of managing her affairs, and praying that the necessary proceedings may be had, so as to have due inquiry and determination as to the truth of said allegations. It is therefore ordered that the 6th day of February, 1889, be appointed as a day for the hearing of said petition, and that a jury be drawn as the law directs for the trial of this issue. It is further ordered that a writ be issued to said sheriff requiring him to take the said Jetta Simon so that he have her in this court, to be present at said trial if consistent with the health and safety of said Simon." The judge then issued the following writ: "To the Sheriff of Said County: Whereas, Ralph G. Richard, as the friend of one Jetta Simon, hath this day filed his petition with the judge of said court, alleging that said Jetta Simon is a female lunatic, of the age of forty-nine years, and a resident of this county, and praying that an inquisition of lunacy may be made and had in due form of law to try the truth of said allegations, and as to whether the said Jetta Simon is incapable of governing herself, and of attending to her affairs; and whereas, the judge of said court has, by due order entered in the premises, appointed the sixth (6th) day of February, 1889, for hearing said petition, and for the due trial thereof: Now, therefore, if it be consistent with the health and safety of said Jetta Simon, you are hereby required to take her body, so that you may have her in said court to be present at said trial, and before the jury then to be impaneled to make said inquisition," etc. Upon this writ there was indorsed the following return of the sheriff: "Received January 31st, 1889, and on the same day executed the within writ of arrest, by taking into my custody the within-named Jetta Simon, and handing her a copy of said writ; and as it is inconsistent with the health and safety of the within-named Jetta Simon to have her present at the place of trial, and on the advice of Dr. H. P. Hirshfield, a physician whose certificate is hereto attached, she is not brought before the honorable court." There was a venire for 24 jurors, regularly issued, from which the jury to hear the inquisition of lunacy was impaneled. There was appointed a guardian ad litem of Jetta Simon, who, for answer to the petition, denied the matters and things averred therein.

Upon the trial of the issue, the following judgment entry was made: "This being the day appointed by reference to an entry thereof made upon the minutes of the court on the 30th of January, 1889, for the hearing of the petition of Ralph G. Richard, filed, alleging the lunacy of the said Jetta Simon, and praying an inquisition thereof; and it being shown that it would not be consistent with the health and safety of said lunatic to bring her into court at this time; and it appearing that due process had been served upon said lunatic, notifying her of this proceeding: Now comes the said Richard, and a jury of good and lawful men, who reside in the county of Mobile, and who, having been summoned, to wit, John Pollock, Jr., and eleven others, who, having heard the evidence, the arguments of counsel, and the charge of the court in the premises, and being first duly tried, impaneled, and sworn well and truly to make inquisition of the facts alleged in said petition, and a true verdict to render, according to the evidence, upon their oaths do say: 'We, the jury, find Mrs. Jetta Simon to be of unsound mind.' It is ordered, adjudged, and decreed by the court that said petition, and all other proceedings thereon, together with the aforesaid verdict of said jury, declaring the said Jetta Simon a lunatic, be recorded." Thereupon a guardian was appointed, as shown by the following order: "This day comes Ralph Richard, and applied for letters of guardianship over the estate of said lunatic; and he now entering into bond and security in the sum of $7,000, with H. J. Simon and M. Goldstein as his sureties, which bond, with said sureties, has been taken and approved by the judge of this court, it is ordered and decreed that letters of guardianship over the estate of said Jetta Simon, lunatic, issue to Ralph Richard." Ralph Richard gave the bond required, and entered regularly upon the discharge of the duties as guardian. It was while acting as the guardian of Jetta Simon that he filed the petition for the sale of the property involved in this suit. As stated in the opinion, there was no question raised as to the regularity of the petition for the sale of the land, the proof in support of it, the consummation of the report of sale, and the execution of the deed to the purchaser; and it is therefore unnecessary to set these out in detail. The court, at the request of the plaintiff, gave the general affirmative charge in her behalf. The defendant appeals, and assigns as error the giving of this charge.

Pillans, Torrey & Hanaw and Overall, Bestor & Gray, for appellant.

Gregory L. & H. T. Smith, for appellee.

COLEMAN J.

Jetta Simon, the appellee, sued in ejectment to recover a certain lot of land. The facts were substantially agreed upon, and, upon the evidence, the court instructed the jury to find for the plaintiff. The conclusion of the court from the evidence is questioned by the assignment of error. The land sued for, at one time, belonged to the plaintiff, and the issue involved was whether the defendant had acquired her title.

Upon proceedings instituted in the probate court of Mobile county, Jetta Simon had been declared to be of unsound mind, and one Ralph G. Richard was appointed her guardian. It was upon his petition as guardian that the land was sold, under and by virtue of a decree of the probate court. The defendant, Craft, became the purchaser, paid the purchase money, the sale was confirmed, and a deed duly executed to him. The regularity of the petition for the sale of the land, the proof in support of it, the confirmation and the execution of the deed to the purchaser, are not questioned. The real question is whether Jetta Simon was legally declared to be of unsound mind. This being established, the remainder of the proceedings, including the acquisition of title by the defendant, cannot be assailed. The sufficiency of the petition to institute an inquiry into the soundness of mind of Jetta Simon was not questioned in the court below, nor has it been questioned in the argument of counsel on this appeal.

It is contended that the authority of the court to appoint a guardian being dependent upon the fact that Jetta Simon was legally declared to be of unsound mind, unless the record furnishes the evidence for the exercise of the authority, the appointment itself must fall, and, if there was no legally appointed guardian, then there could be no valid sale upon his petition....