Rath's Committee v. Smith

CourtKentucky Court of Appeals
Writing for the CourtSampson
Citation180 Ky. 326
PartiesRath's Committee v. Smith.
Decision Date26 April 1918
180 Ky. 326
Rath's Committee
v.
Smith.
Court of Appeals of Kentucky.
Decided April 26, 1918.
Appeal from Logan Circuit Court.

S. R. CREWSDON and COLEMAN TAYLOR for appellant.

W. V. PERRY for appellee.

OPINION OF THE COURT BY JUDGE SAMPSON — Affirming.


This action was instituted to reform three notes of $133.33 each, so as to read $166.66, and to enforce collection thereof when thus reformed as well as to have

Page 327

a certain house and lot in Russellville declared subject to said debt by reason of a mortgage given to secure the notes for five hundred dollars which were executed by Miss Grace Rath on January 8, 1915. This unmarried lady was considerably more than twenty-one years of age at the time of the execution of the papers sued on, and was the owner of a house and lot in Russellville, Kentucky. She was and had been for several years afflicted with the drug habit and at times was flighty in her conversation. Only a short time after the execution of the notes and mortgage sued on, she was by the Logan county court adjudged a lunatic and confined in the asylum for the insane, where she has since remained. The three notes with the mortgage given to secure them were executed by Miss Rath for the price of an automobile which she purchased from W. J. Barnes, the payee in the notes. By mistake of the draughtsman the three notes intended to represent five hundred dollars, the full purchase price, were drawn for one hundred thirty-three dollars and thirty-three cents, each, when they should have been made for one hundred sixty-six dollars and sixty-six cents, each, so as to make the total sum five hundred dollars. This fact seems clearly established by all the evidence. After the execution and delivery of the notes and mortgage and after the latter had been duly entered of record in the office of the clerk of the Logan county court, Barnes for the first time discovered that the sum of the three notes did not amount to five hundred dollars. At this time Miss Rath had been adjudged insane. Some time thereafter W. J. Barnes, who resided in Tennessee, sold and transferred the notes and mortgage to plaintiff, Eugene Smith, for a valuable consideration before either of the notes became due. Smith also is a citizen of Tennessee and resided at Nashville. He was not acquainted with Miss Rath nor with the property mortgaged to secure the notes but, according to the evidence, made inquiries of a banker friend in Nashville, who once resided in Russellville, concerning Miss Rath and the property, and also made some investigation through the clerk of the Logan county court before purchasing the notes. He was, however, acquainted with the fact that the notes were for a sum less than that called for in the mortgage and less than the debt actually due by Miss Rath. He also asserts that he was wholly...

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3 practice notes
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1956
    ...85 Ohio App. 366, 88 N.E.2d 924; First Christian Church in Salem v. McReynolds, supra, and not retrospective. Rath's Committee v. Smith, 180 Ky. 326, 202 S.W. 501; Shupp v. Farrar, supra, 88 N.E.2d loc. cit. 926: 'Contestants contend also that from the adjudication of insanity on November 2......
  • National Life Ins. Co. v. Jayne, No. 2570.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 11 Diciembre 1942
    ...9, 12; Jones v. Schaffner, 193 Iowa 1262, 188 N.W. 787, 792; Wathen v. Skaggs, 161 Ky. 600, 171 S.W. 193, 194; Rath's Committee v. Smith, 180 Ky. 326, 202 S.W. 501, 503; Johnson's Committee v. Mitchell, 146 Ky. 382, 142 S.W. 675, 676; Andrews v. Andrews' Committee, 120 Ky. 718, 87 S.W. 1080......
  • Hale v. Hale
    • United States
    • Court of Appeals of Kentucky
    • 10 Mayo 1932
    ...was incapable of joining with his wife therein or of knowing the effect of the instrument. In the case of Rath's Committee v. Smith, 180 Ky. 326, 202 S.W. 501, it is pointed out that the person asserting and relying upon mental incapacity to avoid a contract has the burden of showing it, an......
3 cases
  • Schuler v. Schuler, No. 29460
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Mayo 1956
    ...85 Ohio App. 366, 88 N.E.2d 924; First Christian Church in Salem v. McReynolds, supra, and not retrospective. Rath's Committee v. Smith, 180 Ky. 326, 202 S.W. 501; Shupp v. Farrar, supra, 88 N.E.2d loc. cit. 926: 'Contestants contend also that from the adjudication of insanity on November 2......
  • National Life Ins. Co. v. Jayne, No. 2570.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 11 Diciembre 1942
    ...9, 12; Jones v. Schaffner, 193 Iowa 1262, 188 N.W. 787, 792; Wathen v. Skaggs, 161 Ky. 600, 171 S.W. 193, 194; Rath's Committee v. Smith, 180 Ky. 326, 202 S.W. 501, 503; Johnson's Committee v. Mitchell, 146 Ky. 382, 142 S.W. 675, 676; Andrews v. Andrews' Committee, 120 Ky. 718, 87 S.W. 1080......
  • Hale v. Hale
    • United States
    • Court of Appeals of Kentucky
    • 10 Mayo 1932
    ...was incapable of joining with his wife therein or of knowing the effect of the instrument. In the case of Rath's Committee v. Smith, 180 Ky. 326, 202 S.W. 501, it is pointed out that the person asserting and relying upon mental incapacity to avoid a contract has the burden of showing it, an......

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