Daugherty v. Powe

• Decision Date: 13 November 1900
• Citation: 127 Ala. 577,30 So. 524
• Parties: DAUGHERTY v. POWE [1]
• Court: Alabama Supreme Court

30 So. 524

127 Ala. 577

DAUGHERTY v. POWE ^[1]

Supreme Court of Alabama

November 13, 1900

Appeal from circuit court, Washington county; A. H. Alston, Judge.

Action by Frances Powe, by her next friend, against Ed. Daugherty. Judgment for plaintiff, and defendant appeals. Reversed.

The cause was tried upon issue joined on the plea of the general issue. The plaintiff claimed the lands sued for under a deed executed by one Barton Atchison, who was the owner of said lands in 1893, and in said deed Barton Atchison conveyed to Alice Powe, as trustee for Frances Margery Powe, the lands sued for. There was evidence introduced tending to show that said deed was executed only two days after Barton Atchison had a stroke of paralysis, and that at the time of the execution of said deed he did not know what he was doing, and was mentally incapacitated to transact business, and was incapable of entering into a contract of any character. It was further shown by the evidence that several months after the execution of said deed, and after it had been filed in the office of the judge of probate, Barton Atchison, upon being handed the deed by the probate judge, stated that he did not remember executing the deed, and that he thereupon tore up the deed, and put it in the fire. After the plaintiff had introduced her evidence showing that the deed from Barton Atchison conveyed the property to Alice Powe for Frances M Powe, the plaintiff then asked leave of the court to amend her complaint by striking out the original complaint and filing in lieu thereof a complaint in a common-law action of ejectment, containing two demises,-one in favor of Frances M Powe by her next friend, and the other in favor of Alice Powe. The defendant objected to the allowance of this amendment, upon the ground that it introduced an entirely new cause of action, made an entire change of parties, and operated as a discontinuance. The court overruled the objection, allowed the amendment to be made, and to this ruling the defendant duly excepted. The defendant claimed title to the property sued for under a deed from said Barton Atchison executed on July 29, 1895, and this deed was introduced in evidence. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charge: "The court charges the jury that if they believe the evidence in this case, they must find for the plaintiff." To the giving of this charge the defendant duly excepted. There were verdict and judgment for the plaintiff.

J. H Webb and John Mitchell, for appellant.

Chas L. Bromberg, Jr., and Leslie Hall, for appellee.

DOWDELL J.

One of the essential elements to the validity of a contract is the concurring assent of two minds. If one of the parties to a contract is insane at the time of its execution, this essential element is wanting. The principle is the same whether the contract rests in parol or be by deed. A deed executed by a person non compos mentis is absolutely void. Thompson v. Security Co., 110 Ala. 400, 18 So. 315 55 Am. St. Rep. 29; Kennedy v. Marrast, 46 Ala. 167; Rawdon v. Rawdon, 28 Ala. 566; Dexter v. Hall, 15 Wall. 9, 21 L.Ed. 73; Van Deusen v. Sweet, 51 N.Y. 384; Brown v. Miles, 61 Hun, 453, 16 N.Y.S. 251; 9 Am. & Eng. Enc. Law (2d Ed.) 120; Farley v. Parker, 6 Or. 105, 25 Am. Rep. 504; In re Desilver's Estate, 5 Rawle, 111, 28 Am. Dec. 645; Leggate v. Clark, 111 Mass. 309; Society v. De Lashmutt (C. C.) 67 F. 400. "Since the time of Thompson v. Leach, Carth. 435, it has been held that a lunatic's conveyance is absolutely void as to third parties." Rogers v. Walker, 6 Pa. 371, 47 Am. Dec. 470. The question of insanity is one of fact, and should be left to the determination of the jury. There was evidence tending to show that the grantor in the deed relied upon by the plaintiff for recovery was at the time of its execution of unsound mind, and incapable of entering into a contract. Upon this question there was a conflict in the evidence, and the court, therefore, erred in giving the affirmative charge for the plaintiff. In the statutory action of ejectment to try titles, in the nature of an action in ejectment, the suit should be brought in the name of the party having the legal title. The present action was originally commenced by summons and complaint in the name of Frances Powe, by her next friend, Alice Powe, and was in form the statutory action of trespass to try titles. After entering upon the trial of the cause, upon issue joined upon the plea of "not guilty," the plaintiff's evidence showed that the legal title to the lands in dispute was not in Frances Powe, but was in Alice Powe, as trustee, etc. Thereupon the plaintiff, by leave of the court, but against the objection of defendant, was permitted to amend his pleading by striking out the original complaint,...