Evans v. Johnson

• Court: Supreme Court of West Virginia
• Writing for the Court: BRANNON
• Citation: 19 S.E. 623,39 W.Va. 299
• Parties: EVANS v. JOHNSON et al.
• Decision Date: 04 April 1894

19 S.E. 623
39 W.Va. 299

EVANS
v.
JOHNSON et al.

Supreme Court of Appeals of West Virginia.

April 4, 1894.

Insanity—Appointment of Committee — Resignation—Limitation of Actions—Presumption of Payment—Vendor's Likn.

1. A county court or its clerk cannot appoint a committee for a person as insane without notice to him. Such an appointment is void, and confers no authority. Dent, J., dissenting.

2. Until chapter 87, Acts 1891 (Code 1891, c. 118, § 1), a committee could not resign.

No time bars the right, either under the statute of limitations or presumption of payment, of a vendor to recover purchase money for land, if he has not parted with the legal title.

4. Flie statute of limitations has no application to bar a lien for purchase money reserved in a conveyance of land. Though action on a note given for such purchase money be barred, so as to defeat its collection out of other property of the debtor, the lien against the particular land conveyed is not barred. Presumption of payment from lapse of time and laches, unless repelled and explained, will defeat enforcement of such lien. (Syllabus by the Court.)

Appeal from circuit court, Monongalia

county.

Action by Hiel J. Evans, committee of Evan Morgan, against Omer Pl. Johnson, and others. Decree for complainant, and Thornton Pickeupaugh appeals. Reversed.

Berkshire & Sturgiss, for appellant.

L. V. Keck and Okey Johnson, for appellee.

BRANNON, P. Evan Morgan owned an interest in a tract of land in Monongalia county. Omer B. Johnson, as his guardian, upon petition obtained from the circuit court of that county an order to sell his ward's interest in the land, and did sell it to Elza L. Morgan, who executed to said guardian two notes for deferred installments of purchase money. Under authority of the order of sale, a special commissioner made to the purchaser a deed conveying said infant's interest in the tract of land, retaining a lien for said notes. Afterwards, when said infant had become of age, the clerk of the county court of Taylor county appointed Hiel J. Evans committee of said Evan Morgan, as an insane person, and said committee brought this chancery suit against said Johnson, Elza L. Morgan, and others for the purpose of charging Johnson as guardian of said Evan Morgan with liability to his ward for the amount of said notes made to him by the purchaser of said interest in said land, because he had been chargeable with their collection, and to settle his account as guardian, and also to enforce the lien existing for the notes under said sale and deed to the purchaser, the bill alleging that they had not been paid. The notes were dated December 3, 1868, and this suit to collect them was brought in 1887. By deed of May 30, 1887, from Elza L. Morgan, for himself and as attorney in fact for a brother and coparcener, to Thornton Picken-paugh, and a deed of October 20, 1887, from Minerva A. Fleming, another coparcener, to said Pickenpaugh, Pickenpaugh became owner of the entire tract, including the share of said Evan Morgan which had been sold under said court order and purchased by Elza L. Morgan. Pickenpaugh is a party to the cause. The court entered a decree holding the said interest in said tract of land liable for the payment of said notes given by Elza L. Morgan for said interest, and subjecting it to sale in enforcement of said lien, and from this decree Pickenpaugh appeals. Pending the suit, Hiel J. Evans resigned his office of committee, and Justus F. Ross was appointed in his place by the county court of Taylor, and the suit was ordered to proceed in the name of said Ross as committee in place of Evans.

The brief of appellant's counsel, in its opening, presents what in its nature is the first question for us to decide, by insisting that the plaintiff has no right to recover in this suit or any suit. The first reason given by counsel for this contention is that the appointment of Hiel J. Evans to be committee of Evan Morgan as an insane person is void for want of notice to said Evan Morgan. In Lance v. McCoy, 34 W. Va. 416, 12 S. E. 728, the opinion is expressed that such an appointment by a county court without notice, as required by Code, c. 58, § 34, is void. A re-examination of this question in this case has confirmed me in the view then expressed. The question is of importance, both because of its frequent occurrence and of its effect upon persons alleged to be insane. So far as my observation has gone, the practice has been, in clerks' offices of the county courts and in county courts, to make such appointments without such notice. It lies at the foundation of justice in all legal proceedings that the person to be affected have notice of such proceedings. As such an appointment takes from the person the possession and control of his property, and even his freedom of person, and commits his property, his person, his liberty to another, stamps him with the stigma of insanity, and degrades him in public estimation, no more important order touching a man can be made, short of conviction of infamous crime. Will

[19 S.E. 624]

It be said, in answer to this, that he is insane, and that notice to an insane man will do him no good? The response is that his Insanity is the very question to be tried, and he the only party interested in the issue. Often, if given notice, he will be prompt to attend, and In his person be the unanswerable witness of his sanity; often, if not given notice, those interested in using or robbing him of his property will effectuate a corrupt plan. Almost as well might we convict a man of crime without notice. There is abundant authority for this position. Even though the statute be silent as to notice, as ours as to appointment of committees by county courts is, though that as to circuit court appointment requires notice, yet the common law steps in and requires it. See Chase v. Hathaway, 14 Mass. 222, 224; Hathaway v. Clark, 5 Pick. 490; Hutchins v. Johnson, 12 Conn. 376; McCurry v. Hooper, 46 Am. Dec. 280; Board v. Budlong, 51 Barb. 493; Eslava v. Lepretre, 21 Ala. 504; Dutcher v. Hill, 77 Am. Dec. 572; Busw. Insan. § 55; Stafford v. Stafford, 1 Mart. (N. S.) 551. In Molton v. Henderson, 62 Ala. 426, held that "inquisition of lunacy without personal notice to the alleged non compos is void, and so is the appointment by the probate court of a guardian for said lunatic, and the proceedings by such guardian for a sale of lands belonging to said lunatic." A statute authorizing an inebriate to be committed to a hospital on ex parte proceeding was held void by the New York supreme court. In re Janes, 30 How. Pr. 446. In Georgia the statute required notice to three relatives of the person before appointment of a guardian over him as an insane person. Judge Bleckley, delivering the opinion, thought there ought to be also notice to the person. He said: "It is, to say the least, doubtful whether the property of an adult citizen can be taken out of his custody and committed to guardianship without previous warning served either upon him, or some person duly constituted by law or some legal tribunal to be notified in his stead."¹ If it was unreasonable, in the opinion of a Roman governor, to send a prisoner, and not signify withal the crimes alleged against him, the law judges it to be equally so to pass upon the dearest civil rights of the citizen, without first giving him notice of his adversary's complaint. The truth is that at the door of every temple of the laws in this broad land stands justice, with her preliminary requirement upon all administrations: You shall condemn no man unheard. The requirement is as old, at least, as Magna Charta. It is the most precious of all gifts of freedom, that no man be disseised of his property, or deprived of his liberty, or In any way injured, nisi per legale judicium suorum, vel per legem ter-rae. It is a principle of natural justice which courts are never at liberty to dispense with, unless under the mandate of positive law, that no person shall be condemned unheard." He said that in that case there was "action, trial, and judgment in two days, and no previous notice." In our practice it often occurs in ten minutes. This practice, I say, as was said by the Louisiana court in Stafford v. Stafford, supra, might put "the wisest man in the community under the control of a curator, and hold him up to the world as an adjudged insane." Both constitution and statute confer this power on the county courts as a jurisdiction. Before appointing, the court must determine whether or not the fact which alone gives it power to act exists; that is, whether the party is in any of the phases or conditions of mind to be considered insane under the statute. It must inquire into the fact, and, in deciding, exercise judgment, and of this legal investigation, all important to him, he ought to have notice. He wants to deny the very basis of the proposed order, —his insanity. It. is an important transaction to him. Shall he have no notice of it? Am I told that the statute does not in terms require notice? I answer as shown in Lance v. McCoy, 34 W. Va. 416, 12 S. E. 728, as a circuit court cannot appoint without, so, by proper construction of the Code, neither can a county court. I answer, further, that a statute will not be construed to authorize proceedings affecting a man's person or property without notice. It does not dispense with notice. Bish. Writ Law, §§ 25, 141; Chase v. Hathaway, 14 Mass. 222, 224; Arthur v. State, 22 Ala. 61; End. Interp. St. sec. 262; Boon-ville v. Ormrod, 26 Mo. 193; Wickham v. Page, 49 Mo. 526. Chief Justice Marshall held void a judgment of even a court martial imposing fines on militia men, because without notice. Meade v. Deputy Marshal. 1 Brock. 324, Fed. Cas. No. 9, 372. This statute is one of summary proceeding.

If the case were one of mere error or irregularity, it might be said that the order was good against collateral attack, and must be reversed by a direct proceeding; but...