Sheets v. Bray

• Court: Indiana Supreme Court
• Writing for the Court: Coffey, J.
• Citation: Sheets v. Bray, 125 Ind. 33, 24 N.E. 357 (Ind. 1890)
• Decision Date: 17 May 1890
• Docket Number: 14,287
• Parties: Sheets v. Bray et al

24 N.E. 357

125 Ind. 33

Sheets v. Bray et al

No. 14,287

Supreme Court of Indiana

May 17, 1890

Petition for a Rehearing Overruled Sept. 19, 1890.

From the Morgan Circuit Court.

Judgment affirmed.

V Carter, G. W. Grubbs, M. H. Parks and F. P. A. Phelps, for appellant.

G. A Adams, J. S. Newby and J. M. Bishop, for appellees.

OPINION

Coffey, J.

This was an action by the appellees against the appellant, instituted in the Morgan Circuit Court, for the partition of the land described in the complaint. The complaint alleges that each of the appellees and the appellant are the owners as tenants in common of one-eighth of said land, as the only heirs at law of Harris Bray, their father, who died the owner of the same.

The appellant answered, admitting the heirship as alleged in the complaint, but averring that the said Harris Bray, in his lifetime, sold said land to the appellant, and in consideration of her agreement to care for, nurse, and support him during his natural life, agreed to convey the same to her, or to execute a will devising the same to her; that under the terms of said agreement the said Harris Bray put her in possession of said land, and that she made valuable improvements thereon, but that he died without executing said will or conveyance.

The appellant also filed a cross-complaint, setting up substantially the same facts, and prayed a decree for specific performance.

In addition to the general denial to the cross-complaint the appellees answered, that at the time of making the contract therein set out, the said Harris Bray was a person of unsound mind, and incapable of entering into a binding contract.

It is urged that this answer was not sufficient, because it did not aver that such insanity was a continuing disability. This position can not be maintained.

It is an old and familiar rule, so well known as to need no citation of authorities, that when insanity is once shown to exist it is presumed to continue until the contrary is shown.

The burden was on the appellant to show that Harris Bray recovered from his insanity, if he was insane at the time he entered into the contract alleged in the cross-complaint. The case stands upon different ground from that of a case where the contract has been fully executed. The cross-complaint seeks to enforce an executory contract, and in such case it is a sufficient answer to say that the party who made it was, at the time, a person of unsound mind, and not capable of making a binding contract. Physio-Medical College of Indiana v. Wilkinson, 108 Ind. 314, 9 N.E. 167.

The fourth paragraph of answer to the cross-complaint avers that the contract therein set out was procured by the fraud of the appellant, setting out specifically in what the fraud consisted, and is, in our opinion, if true, sufficient to bar the appellant's right to a specific performance of the contract.

The court, of its own motion, called a jury, to whom it submitted questions of fact for the information of the court. Upon a return of the answers to questions submitted to the jury the court prepared what purports to be a special finding of the facts proven in the cause, and its conclusions of law thereon. It does not appear that the court made such special finding at the request of any of the parties to the suit. We are not at liberty, therefore, to treat it as a special finding, but must treat the case as one in which the court entered a general finding. Northcutt v. Buckles, 60 Ind. 577; Caress v. Foster, 62 Ind. 145; Smith v. Uhler, 99 Ind. 140.

It appears from the record that one of the jurors called was related by marriage to one of the appellees; and it is insisted that the court, for that reason, should have granted a new trial. Did it appear that the judgment in this cause was based upon the verdict of a jury, one of whom was related to one of the parties within the sixth degree, there would be ground for the complaint here made. But in a case like this the finding of...