Miles v. Johanson

• Citation: 238 P. 291,40 Idaho 782
• Parties: W. H. MILES, Appellant, v. JOHAN JOHANSON and ESTHER A. JOHANSON, His Wife, Respondents
• Decision Date: 29 May 1925
• Court: Idaho Supreme Court

238 P. 291

40 Idaho 782

W. H. MILES, Appellant, v. JOHAN JOHANSON and ESTHER A. JOHANSON, His Wife, Respondents

Supreme Court of Idaho

May 29, 1925

APPEAL AND ERROR-DISMISSAL-INSANITY-ADJUDICATION OF INSANITY-RESTORATION TO CAPACITY-CAPACITY TO CONTRACT-RESCISSION-DAMAGES-PLEADING-TENDER-ACCEPTANCE - EVIDENCE OF REASONABLE RENTAL VALUE.

1. Failure of sureties to justify under C. S., sec. 4590, is not a ground for dismissal of an appeal.

2. A contract for the sale of lands and a deed thereunder, given by an adjudged insane person, are, under C. S., sec. 4590 absolutely void.

3. An adjudged insane person cannot make a valid contract of sale or deed until restored to capacity either by certificate of the medical superintendent or resident physician of the asylum to which committed or a judicial decree.

4. Expenditures claimed to have been made on account of a void contract, unless plead as damages, may not be recovered in an action for rescission of the contract.

5. Evidence of the value of particular crops grown on land not admissible as showing cash rental value thereof.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Hon. William A. Babcock, Judge.

Action to rescind contract. Judgment for defendants. Reversed with instructions.

Case reversed, with instructions. Costs awarded to appellant.

Bothwell & Chapman and Henry M. Hall, for Appellant.

After a person's incapacity has been judicially determined he cannot make any valid conveyance or other contract nor delegate any power nor waive any right until his restoration to capacity. Our statute provides that such restoration to capacity shall be established by the certificate of the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing the discharge of such person therefrom cured and restored to reason; such fact cannot be established in any other manner or by any other proof in an action of this nature. (C. S secs. 1177-1191, 4588-4590, 5661; Knorp v. Board of Police Commissioners, 31 Cal.App. 529, 161 P. 12; Kellogg v. Cochran, 87 Cal. 192, 25 P. 677, 12 L. R A. 104; Cundall v. Haswell, 23 R. I. 508, 51 A. 426; National Metal Edge Box Co. v. Vanderveer, 85 Vt. 488, Ann. Cas. 1914D, 865, 82 A. 837, 42 L. R. A., N. S., 343; Ex parte Hinkle, 33 Idaho 605, 196 P. 1035; Byers v. Solier, 16 Wyo. 232, 93 P. 59, 14 L. R. A., N. S., 468; Plaster v. Rigney, 97 F. 12, 38 C. C. A. 25; Harris v. Jones, 188 Ala. 633, 65 So. 956; Birmingham Ry., L. & P. Co. v. Hinton, 158 Ala. 470, 48 So. 546; Gray v. Turley, 110 Ind. 254, 11 N.E. 40; Rogers v. Blackwell, 49 Mich. 192, 13 N.W. 512; Gates v. Cornett, 72 Mich. 420, 40 N.W. 740; Achatz v. Bailey, 108 Neb. 272, 187 N.W. 641; Hanley v. National Loan & Investment Co., 44 W.Va. 450, 29 S.E. 1002; Brown v. Carmichael, 149 Ga. 548, 101 S.E. 124; McClure Realty & Investment Co. v. Eubanks, 151 Ga. 763, 108 S.E. 204; Johnson v. Schoch, 85 Kan. 837, 118 P. 696; Godwin v. Parker, 152 N.C. 672, 68 S.E. 208, Rohrer v. Darrow, 66 Colo. 463, 182 P. 13; First National Bank v. Tribble, 155 Ark. 264, 244 S.W. 33; Kirk v. McClendon, 94 Okla. 33, 220 P. 949; Prudential Society v. Ray, 207 A.D. 496, 202 N.Y.S. 614.)

The reasonable rental value of the premises in question during the time they were used and occupied by appellant cannot be established by proof of the amount of revenue received by appellant during the season of 1921 from specific sales of potatoes produced thereon. (Curry v. Sandusky Fish Co., 88 Minn. 485, 93 N.W. 896; More v. Deyoe, 22 Hun (N. Y.) 208; Ruckman v. Imbler Lumber Co., 42 Ore. 231, 70 P. 811; Cluck v. Houston T. & C. R. Co., 34 Tex. Civ. 452, 79 S.W. 80.)

E. D. Reynolds and E. J. Hornibrook, for Respondents.

"The competency or incompetency, sanity or insanity, of a person at the time of a given transaction may be proven by laymen or nonexpert witnesses." (Weber v. Della Mountain Mining Co., 14 Idaho 404, 94 P. 441; Ratliff v. Baltzer's Admr., 13 Idaho 152, 89 P. 71; Topeka Water Supply Co. v. Root, 56 Kan. 187, 42 P. 715; Walker v. Coates, 5 Kan. App. 209, 47 P. 158.)

The fact that sureties on appellant's appeal bond have not justified is ground for dismissal of the appeal under C. S., sec. 7168. (Farnworth v. Veit, 39 Idaho 40, 225 P. 1023.)

The finding of a jury upon a substantial conflict of evidence will not be disturbed, though the evidence seems to preponderate in appellant's favor. (Ramsbottom v. Fitzgerald, 5 Cal. Unrep. 941, 52 P. 149.)

A verdict on conflicting evidence will not be disturbed if there is any substantial evidence on which to base it. (Friedrich v. Donahue, 20 Idaho 92, 116 P. 1029.)

GIVENS, J. William A. Lee, C. J., Wm. E. Lee, Budge and Taylor, JJ., concur.

OPINION

GIVENS, J.

Respondent moves to dismiss the appeal because of the failure of the sureties to justify and appellant's failure to secure new sureties after their sufficiency had been excepted to. C. S., sec. 7154, provides:

"The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding $ 300; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal."

An undertaking in proper form was executed by appellant and the sufficiency of the sureties was excepted to by respondents under C. S., sec. 7161, but the sureties did not appear and justify. C. S., sec. 7161, provides:

"The adverse party may except to the sufficiency of the sureties to the undertakings mentioned in sections 7154, 7155, 7156 and 7158 at any time within 30 days after filing of such undertaking; and, unless they or other sureties, within 20 days after the appellant has been served with notice of such exception, justify before a judge of the court below, or the probate judge of the county, upon five days' notice to the respondent of the time and place of justification, execution of the judgment, order or decree appealed from is no longer stayed."

The effect of the failure of sureties to justify under this section has not been passed upon by this court. Kerr's Cyc. Codes of California, Code of Civil Procedure, secs. 941 and 948, were identical to C. S., secs. 7154 and 7161, respectively, and California in a line of decisions construing these sections has held that failure of the sureties to justify is not a ground for a dismissal of the appeal, but merely operates to avoid the stay of execution of the judgment, order or decree appealed from. (Gooby v. Hanson, 11 P. 489; Hill v. Finnigan, 54 Cal. 311; Schacht v. Odell, 52 Cal. 447; Wittram v. Crommelin, 72 Cal. 89, 13 P. 160; Swasey v. Adair, 83 Cal. 136, 23 P. 284; Duncan v. Times-Mirror Co., 109 Cal. 602, 42 P. 147; St. Clair v. Joos, 66 Cal.App. 398, 226 P. 623; King v. Pony Gold Min. Co., 24 Mont. 470, 62 P. 783; Threlkeld v. O'Neal, 26 Mont. 209, 553, 66 P. 940, 71 P. 1132.) From C. S., sec. 7161, the meaning is clear that for such a failure, the execution of the judgment, order or decree appealed from is no longer stayed, and it is not provided in this section or any other section that the failure operates to make the bond void. The supreme court of Washington has held that the failure of sureties to justify is a ground for dismissal. (Starling v. Burdette, 28 Wash. 261, 68 P. 723) but there the statute provides that "the bond shall be void" if the sureties fail to justify.

This action was for the rescission of a written contract under which appellant purchased from respondents 80 acres of land, together with the appurtenant water right and certain personalty, on the grounds that false representations and statements were made by respondents as to the sufficiency and kind of water right for the land and that Esther A. Johanson, one of the respondents, was insane at the time the contract was executed which rendered the contract void.

Appellant contends that the trial court had no jurisdiction to inquire into or pass upon the mental condition of the respondent Esther A. Johanson, with reference to her capacity to contract at the time she executed the contract under consideration, for the reason that after a person's incapacity has been judicially determined, such person cannot make any valid conveyance or other contract until his restoration to capacity (C. S., sec. 4590), and that such restoration may be established only by the certificate of the medical superintendent or resident physician of the insane asylum to which the person may have been committed, showing the discharge of such person therefrom cured and restored to reason, and that the person's capacity may not be shown in any other manner or by any other proof, basing such contention on C. S., sec. 4590, which 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 appears that Mrs. Johanson was adjudged insane and committed to the asylum at Blackfoot, February 10, 1920, where she underwent treatment until May 18, 1920, when she was paroled to her husband. No guardian was appointed for Mrs. Johanson.

C. S sec. 4590, is to be read in connection with C. S., sec. 4589, which provides that a...