DeWey v. Algire

• Decision Date: 04 May 1893
• Citation: 55 N.W. 276,37 Neb. 6
• Parties: DEWEY v. ALGIRE ET AL.
• Court: Nebraska Supreme Court

37 Neb. 6

55 N.W. 276

DEWEY

v.ALGIRE ET AL.

Supreme Court of Nebraska.

May 4, 1893.

Syllabus by the Court.

1. The record of proceedings under chapter 40, Comp. St., whereby a person has been adjudged insane and a fit subject for treatment in the hospital for insane, is not admissible for the purpose of proving insanity, in an action brought to avoid a conveyance made by such person.

2. A judgment in a case tried without a jury will not be disturbed because of the admission of immaterial testimony, where the testimony properly admitted justifies the finding.

3. While mere imbecility or weakness of mind in a grantor will not, in the absence of fraud, avoid his deed, insanity will do so if of such a character as to induce the conveyance, although such insanity may not amount to a complete dethronement of reason and understanding upon all subjects.

4. The deed of an insane person may be avoided, as against a grantee without notice of the grantor's insanity, and against an innocent purchaser from such immediate grantee. In the latter case it is not necessary to restore the consideration paid by such purchaser to the immediate grantee.

Commissioners' decision. Appeal from district court, Gage county; Appelget, Judge.

Action by William F. Dewey, guardian of John Paulsen, an insane person against Lyman W. Algire, John B. Mowry, and Lena Paulsen, to set aside a certain conveyance. Decree for plaintiff. Defendants Algire and Mowry appeal. Affirmed.E. O. Kretsinger and T. F. Burke, for appellants.

Hazlett, Bates & Le Hane, for appellee.

IRVINE, C.

On the 12th day of November, 1889, one John Paulsen, who was then the owner of a farm lying in Gage and Pawnee counties, which had for some years been occupied as a homestead by Paulsen and wife, conveyed said farm to Lyman W. Algire, Paulsen's wife joining in the conveyance, and received in return certain lots in Blue Springs and in Wymore. On November 20, 1889, Algire conveyed the undivided one-half of the Paulsen farm to the defendant Mowry. In February, 1890, Paulsen was adjudged insane, and the plaintiff, Dewey, was appointed his guardian. Dewey, within a few days of his appointment, instituted this action against Algire, Mowry, and Lena Paulsen, the latter being the wife of John Paulsen, for the purpose of setting aside the conveyance to Algire, upon the ground that Paulsen was insane at the time of its execution. A decree was rendered in accordance with the prayer of the petition, finding all the material facts for the plaintiff, vacating the conveyances from Paulsen and wife to Algire, and from Algire to Mowry. It appeared in evidence that, immediately after the exchange was made, Paulsen and wife separated, and conveyances of the Blue Springs and Wymore property were made, whereby what was estimated as one-half in value thereof was conveyed to Lena Paulsen. The decree ordered a reconveyance of all of this property. The case was brought to this court upon appeal by Algire and Mowry. The questions involved in the case are discussed in the briefs under a number of heads. For the purposes of this opinion all these questions classify themselves within five topics.

1. Upon the trial, for the purpose of proving the insanity of Paulsen, the records of two proceedings were introduced in evidence,--the one in Pawnee county in 1886, and the other in Gage county in 1890. These proceedings were had under sections 17 to 23, c. 40, Comp. St., and in each case Paulsen was adjudged insane, and a fit subject for custody and treatment in the hospital for the insane. There is considerable discussion in the briefs of the effect of these records as creating presumptions of insanity by reason of the adjudications and commitments, and of sanity by reason of the discharge of Paulsen as recovered. But the appellants raised a broader question, by objecting to the introduction of the records in evidence, and, in the view we take of that question, all others relating to these records are eliminated from the case. An inspection of the statutes under which these proceedings were had discloses that the sole object of such proceedings is to ascertain whether or not the person alleged to be insane is a fit subject for custody and treatment in the hospital. The proceedings may be ex parte. The commissioners are required to take testimony upon the subject, and any citizen of the county, or relative of the person charged, may appear and resist the application, but no notice to any one is required, and the commissioners may, if they see fit, dispense with the presence of the person charged during their proceedings. By section 54 of the same chapter the term “insane,” as used in the act, is defined to include every species of insanity or mental derangement. At the common law an inquisition founded upon a commission de lunatico inquirendo, resulting in an adjudication of insanity, was held to be in all cases prima facie evidence, and sometimes conclusive, of the insanity of the person charged. This was upon the ground that such a proceeding was in the nature of one in rem, to determine the status of the party, and was therefore binding upon the whole world. This proceeding bore a close analogy to the proceedings under our statute, whereby guardians are appointed for persons insane. It differs very materially, however, from a proceeding looking towards the custody and treatment of a party in the hospital. In the latter proceeding the examination is more or less ex parte, and its object, under the broad definition of insanity before referred to, presents an issue entirely different from that presented in this case, which is the competency of the party to manage his own affairs and enter into a valid contract. The records of similar proceedings have been held inadmissible in such cases as we are now considering in Leggate v. Clark, 111 Mass. 308, and in Knox v. Haug, 48 Minn. 58, 50 N. W. Rep. 934, and we think the reasoning in those cases is sound. In the case of Wheeler v. State, 34 Ohio St. 394, it was held that, while such inquisitions were not even prima facie evidence of insanity, they were admissible as tending to prove the fact; but the authorities cited in the opinion in...