McFarland v. Hudson

• Decision Date: 17 January 1936
• Citation: 89 S.W.2d 877,262 Ky. 183
• Parties: MCFARLAND v. HUDSON ET AL.
• Court: Kentucky Court of Appeals

89 S.W.2d 877

262 Ky. 183

MCFARLAND v. HUDSON ET AL.

Court of Appeals of Kentucky

January 17, 1936

Appeal from Circuit Court, Whitley County.

Action by Ancil McFarland against T. J. Hudson and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Stephens & Steely, of Williamsburg, for appellant.

R. S Rose, B. B. Snyder, W. B. Early, L. O. Siler, and C. B Upton, all of Williamsburg, for appellees.

STITES Justice.

This is an appeal from a judgment of the Whitley circuit court sitting in equity. On June 27, 1927, the appellant, Ancil McFarland, and his wife borrowed $500 from the First National Bank of Williamsburg, delivering their joint note, payable in six months, for this amount, to the bank, secured by a mortgage on a house and lot owned by McFarland in the city of Williamsburg. The note was renewed from time to time, and partial payments were made on the principal, with the result that on June 1, 1930, a renewal note in the sum of $275 was executed and delivered to the bank, secured by the same mortgage. In the fall of 1930 appellant became violently insane, and proceedings were had which resulted in his commitment to the Eastern State Hospital at Lexington. Thereafter, in March, 1931, the president of the First National Bank of Williamsburg, appellee E. S. Moss, was appointed committee for appellant; the appointment being based on the previous adjudication of insanity. Thereupon suit was filed by the bank against the appellant, his wife and his alleged committee, to foreclose the mortgage on the house and lot belonging to appellant in Williamsburg. Summons was issued and served on appellant's wife in Whitley county and on his committee, and summons was likewise served at the asylum in Fayette county on Dr. W. R. Thompson. The following certificate appears on the summons:

"Patient Ancil McFarland, confined here is very insane, and it would be detrimental to his best interest to serve court service on him.

F. G. Larue, Superintendent,

Eastern State Hospital,

By W. R. Thompson, Assist. Supt."

The return on the summons served by the sheriff of Fayette county is as follows: "Executed March 30, 1931, on Ancil McFarland by delivering it to Dr. W. R. Thompson, Assistant Superintendent of Eastern State Hospital for Insane, in whose care and custody the said Ancil McFarland is, a true copy of the within summons, Dr. Thompson having certified that it would be detrimental to said Ancil McFarland to serve summons on him."

The foreclosure suit was prosecuted to final judgment, and the property was appraised at $500 and sold for $435 to the appellee T. J. Hudson. Thereafter Hudson conveyed the property to the appellee Ezra Rains, who expended about $1,000 in making improvements, and a year or more later reconveyed the property to the original purchaser, appellee Hudson. After remaining in the Eastern State Hospital for about twenty-two months, appellant was released therefrom and thereafter brought an action in the Whitley circuit court to have declared void the judgment under which he had been declared of unsound mind. That action was prosecuted through this court, and the entire inquest was declared void because of the failure strictly to follow the statute regarding inquests of insanity. McFarland v. Commonwealth, 249 Ky. 128, 60 S.W.(2d) 360. After the decision declaring the inquest to be void, appellant brought this suit against the appellee Hudson, the First National Bank of Williamsburg, E. S. Moss, who served as his committee, and Ezra Rains, asking that the judgment in the foreclosure proceeding be declared void and that he recover the property involved free from all liens except the sum of $275 with interest--the amount of the note he admitted owing the bank. By an amended petition, appellant brought in the wives of Hudson and Rains. By a second...