Fleming v. Bithell

• Decision Date: 14 December 1935
• Docket Number: 6219
• Citation: 56 Idaho 261,52 P.2d 1099
• Parties: ROBERT W. FLEMING, Appellant, v. HEBER BITHELL and ELIZA BITHELL, His Wife, Respondents
• Court: Idaho Supreme Court

52 P.2d 1099

56 Idaho 261

ROBERT W. FLEMING, Appellant, v. HEBER BITHELL and ELIZA BITHELL, His Wife, Respondents

No. 6219

Supreme Court of Idaho

December 14, 1935

Rehearing Denied Jan. 13, 1936.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Action for foreclosure of real estate mortgage. Judgment for defendants. Reversed and remanded with instructions.

Judgment reversed and cause remanded. Costs awarded to appellant.

J Wesley Holden, for Appellant.

Where the person has been adjudicated insane and released from the asylum and years have passed, an adjudication of restoration to sanity is not necessary.

Where one adjudged insane, but no guardian of her personal estate was appointed, and she was afterward discharged from the asylum in an improved condition and thereafter recovered her reason, a contract, subsequently made by her seven years after the adjudication of insanity, was valid, without an adjudication of restoration to reason. (Topeka Water Supply Co. v. Root, 56 Kan. 187, 42 P. 715.)

Plaintiff points out that in order for plaintiff to recover, even though Heber Bithell was statutorily and actually insane at the time he borrowed the $ 1,600 in question and executed the note and mortgage sued on, it is not necessary for plaintiff to prove what defendants did with the money, but only necessary to prove that the money was loaned by plaintiff in good faith and received by the defendants and that defendants got the full benefit and use thereof. (McGrath v. West End Orchard & Land Co., 43 Idaho 255, 261, 251 P. 623; Miles v. Johanson, 40 Idaho 782, 238 P. 291.)

Kenneth S. Mackenzie, for Respondents.

There should be no restitution of the consideration from the mortgagor to the mortgagee in this case, for the following reasons: To do so would be to nullify the plain provisions of statutes of the state of Idaho and the decision of the court and create a lien by force of a void instrument. (Sec 31-108, I. C. A.; Miles v. Johanson, 40 Idaho 782, 238 P. 291.)

"It is by judicial decree to inject life and vitality into an instrument which the law imperatively prohibits as contrary to public policy. It is in effect, a conveyance of the property of a lunatic not within any purpose authorized by law." (Rorher v. Darrow, 66 Colo. 463, 182 P. 13.)

This principle is fully accepted by the supreme court of Idaho and adopted in the case of Miles v. Johanson, supra. "One regularly adjudged incompetent becomes incapable of making a valid contract, because the decree is notice to the world of incapacity." (Hellman Com. Tr. & Sav. Bank v. Alden, 206 Cal. 592, 275 P. 794.)

Under the rule in Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117, the court held that the decree in the guardianship proceedings discloses the incapacity of the person for whom a guardian is being sought, and that the decree relates back to the time of filing the complaint.

BUDGE, J. Ailshie, J., Rice, D. J., Givens, C. J., and Morgan, JJ., concurring. Givens, C. J., concurring in part and dissenting in part. MORGAN, J., Dissenting.

OPINION

BUDGE, J.

This action was instituted in the ordinary form to foreclose a mortgage on real estate, the mortgage being executed by Heber Bithell and Eliza Bithell, his wife.

The pertinent facts are without conflict and are as follows:

On July 22, 1921, Heber Bithell was committed to the State Hospital South, an institution at Blackfoot for the care and treatment of those of unsound mind, and was paroled to the care of his wife on October 10, 1921, was returned to said State Hospital South December 14, 1923, remained until February 13, 1924, and was then released, and executed and acknowledged the note and mortgage herein involved May 8, 1928, more than four years elapsing after Heber Bithell was last released until the execution of the note and mortgage. No guardianship proceedings were ever had and no guardian of the person or estate of Heber Bithell was ever appointed. A guardian ad litem, however, was appointed immediately after the institution of this action.

To the complaint in foreclosure respondents answered by general denial and separate answer and a further separate answer by Eliza Bithell, the wife. The separate answers tendered the issue of insanity of Heber Bithell, alleging he had been committed to the State Hospital South on July 22, 1921, and had never been restored to sanity or competency as provided by the laws of Idaho, and, "that said defendant, Heber Bithell, is now, and ever since the 22d day of July, 1921, continuously has been an insane and incompetent person."

During the trial, which was before the court without a jury, it was stipulated between counsel for all parties that respondents admitted all material allegations of the complaint, respondents reserving the right to plead and prove insanity of Heber Bithell and that because of such insanity the instruments in question are wholly void. It was further stipulated that respondents received $ 1600, the amount of the loan, and used the same for their own use and benefit.

Appellant's assignments mainly predicate error upon the findings and conclusions of the court to the effect that Heber Bithell was duly adjudicated to be insane and incompetent by the probate court of Bonneville County, July 22, 1921, and that no certificate of discharge had been issued showing him to be cured nor were judicial proceedings ever had restoring him to capacity or sanity, and thus that ever since July 22, 1921, he has been and now is an insane and incompetent person and by reason thereof the note and mortgage are void and of no force or effect.

It is unnecessary to separately consider the assignments inasmuch as they, in the main, question the correctness of the court's findings and conclusions upon the admitted facts, and a determination of this question will dispose of the case here.

The question of void and voidable contracts of idiots and persons of unsound mind is controlled by statute. I. C. A., sec. 31-106, provides:

"A person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family."

I. C. A., sec. 31-107, provides:

"A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission."

I. C. A., sec. 31-108, provides:

"After his incapacity has been judicially determined, a person of unsound mind can make no conveyance or other contract, nor delegate any power or waive any right until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person had been discharged therefrom cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge."

It is apparent that the court below treated the proceedings of July 22, 1921, as having conclusively established respondent Heber Bithell's status as defined by I. C. A., section 31-108, that is, that the proceedings of July 22, 1921, were legally determinative of the fact that Heber Bithell was insane and that he was incapable of contracting. We are not unmindful of the observations of this court as found in North Robinson Dean Co. v. Strong, 25 Idaho 721, at 730, 139 P. 847, Corker v. Cowen, 30 Idaho 213, at 215, 164 P. 85, and Baldwin v. Singer Sewing Machine Co., 48 Idaho 596, at 598, 284 P. 1027, wherein it is held, substantially, that written opinions of trial judges constitute no part of the record as such, upon which error may be predicated. However, it is not improper in order to call attention to the theory adopted by the court to refer to the memorandum decision, made prior to the findings, conclusion and decree, which clearly shows that the court concluded that the commitment to the State Hospital South, without a subsequent restoration, either by certificate or judicial proceedings, was and remained a conclusive determination of the incapacity of Heber Bithell to contract, although, as the court states, his insanity was of a recurring type and at the time the note and mortgage were executed, and at the time of the negotiations between appellant and respondents, culminating in the loan involved, Heber Bithell was on parole, in one of his normal periods, and in such state of mind as to understand the nature and purport of the contract, and able to transact business.

We are constrained to the view that the court did not hold or intend to be understood as holding in the absence of the commitment of Heber Bithell in the preliminary proceedings to which reference has been made, that there was sufficient evidence to warrant a holding that Bithell was so insane and incompetent to contract at the time he executed the note and mortgage in question as to make the instruments absolutely void. While the learned trial judge admitted evidence tending to show knowledge or means of knowledge upon the part of appellant prior to the execution of the note and mortgage of the mental condition of Heber Bithell, such action was prompted by the theory that such evidence was material in considering the equities to be determined.

The court in his memorandum decision stated that although Heber Bithell's insanity was, as certified by the physicians of a melancholia type and recurring, the fact that the note and mortgage were negotiated, executed and acknowledged in one of Bithell's normal periods "would not give life or validity to the note and mortgage, it is a fact which should be...