Topeka Water Supply Co. v. Root

• Decision Date: 07 December 1895
• Docket Number: 7769
• Parties: THE TOPEKA WATER-SUPPLY COMPANY v. H. C. ROOT
• Court: Kansas Supreme Court

42 P. 715

56 Kan. 187

THE TOPEKA WATER-SUPPLY COMPANY v. H. C. ROOT

No. 7769

Supreme Court of Kansas

December 7, 1895

Error from Shawnee District Court.

THIS action was brought by H. C. Root, as plaintiff, to compel The Topeka Water-Supply Company to convey to him the undivided one-half of lot 5, of section 30, township 11, range 16, in Shawnee county. This lot was purchased by Hugo Felitz in 1877, and was occupied by himself and family as a residence from that time until the trial of this action. On October 1 1878, Catherine, wife of said Hugo Felitz, was adjudged to be insane, and on October 8 she was placed in the asylum at Osawatomie. No guardian, however, of her person or estate was appointed, nor was there any express adjudication by the court, or finding by the jury, that she was incapable of managing her affairs. On August 7, 1879, she was discharged from the asylum on account of her improved condition. On October 5, 1881, Felitz and wife executed a deed to the water company for an undivided one-half of the lot for $ 400, and on January 26, 1882, they executed another deed for the other half for $ 750. On the 22d of February, 1886, Hugo and Catherine Felitz entered into a contract with H. C. Root and J. W. Campbell, by which it was agreed that Root and Campbell should commence a suit against the water company, as attorneys for Felitz and wife, to set aside the two deeds before mentioned, and should prosecute such suit to final determination, and in payment for their services Felitz and wife agreed to convey to Root and Campbell an undivided half of said lot. It was provided further, that Felitz and wife should pay all necessary expenses of the suit, and that it should not be compromised or settled without the advice and consent of Root and Campbell. This contract was duly acknowledged, and recorded in the office of the register of deeds on the 1st of March, 1886. On the 2d of March, 1886, in accordance with the terms of the written agreement, as subsequently modified by parol, an action was brought by Root and Campbell in the name of Catherine Felitz, in the superior court of Shawnee county, against the Topeka Water-Supply Company, to set aside the deeds referred to in the contract. Root and Campbell made all necessary preparations to try the suit. On the 25th day of August, 1886, Catherine Felitz was adjudged by the probate court of Shawnee county to be a person of sound mind. On the following day, a settlement was made between the water company and Felitz and wife, by which said action was dismissed by Catherine Felitz, and a quitclaim deed to the lot was executed by Felitz and wife to the water company, for which the water company paid $ 390 and executed to Felitz and wife and the survivor of them a life lease of the lot, subject to their right to use it for the purpose of obtaining a supply of water, and other provisions not necessary to state. This settlement was effected without the knowledge or consent of Root and Campbell. At the time of this settlement, Hugo Felitz was 63 years old, and his expectancy of life the court finds to have been about 12 years; and Catherine Felitz was 54 years old and her expectancy of life 18 years. The lease given by the water company to Felitz is found to have been of the value of $ 125 to $ 150 per year. It is also found by the trial court that, at the time of the execution of the first two deeds to the water company, in 1881 and 1882, said lot was the homestead of Felitz and wife, and that Catherine Felitz was then insane and incapable of consenting to the alienation of said homestead; and that on February 22, 1886, the date of the contract between Root and Campbell and Felitz and wife Catherine Felitz was of sound mind and capable of contracting. On December 8, 1886, Campbell and wife conveyed by deed to Root all their interest in said lot. Afterward, Root prepared a deed for the undivided half of the lot and presented it to the water company, and demanded its execution and the conveyance to him of the land therein described. This demand was refused, and thereupon this action was instituted. The case was first tried, and a judgment rendered in favor of the defendant. On proceedings in error in this court, the judgment was reversed, and a new trial ordered. (Root v. Water-Supply Co., 46 Kan. 183, 189.) The case was afterward tried in the district court on the 29th of June, 1891. The court made very full findings of fact and conclusions of law, and entered judgment in favor of the plaintiff, directing a conveyance as prayed for. The defendant brings the case again to this court.

Judgment affirmed.

J. D. McFarland, for plaintiff in error.

Wm. P. Douthitt, and H. C. Root, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

Many questions are presented by the record in this case, and ably argued by counsel on both sides. Some of them we answer with much difficulty, and without entire freedom from doubt. The questions will be considered in the order in which they are discussed in the brief for plaintiff in error.

I. It is objected that there is a defect of parties, that Hugo and Catherine Felitz are necessary parties to this action, and that no decree for a specific performance can be rendered without their presence. The title which the plaintiff sought to have conveyed to him passed from Felitz and wife to the water company. The contract under which the plaintiff claims was on record at the time of the conveyance, and the water company acquired its title subject to the rights of Root and Campbell, and charged with full notice of such rights. If the plaintiff is in equity entitled to a half interest in the land, the water company took its conveyance from Felitz and wife charged with that equity, and holds it only as a trustee for his benefit. The rights of Felitz and wife cannot possibly be determined in this action, nor does the plaintiff seek to affect them in any way. He seeks merely to obtain a legal title which he alleges the defendant holds as his trustee. The case of A. T. & S. F. Rld. Co. v. Benton, 42 Kan. 698, decides that a subsequent purchaser holding the legal title is a necessary party to an action for specific performance, but does not hold that the vendor, after having conveyed away the title to a third person, is a necessary party. In the case of Gregg v. Hamilton, 12 Kan. 333, the vendor does not seem to have been regarded as a necessary party, and we now hold that he is not.

II. It is urged that the contract sued on is absolutely void if the premises were a homestead at the time of its execution; that Catherine Felitz having been adjudged insane prior to the execution of the contract, and there having been no subsequent adjudication that she had been restored to her reason, the statute makes the contract absolutely void, and that other proof of her restoration would be unavailing; that the adjudication of insanity fixes the status of the person, and remains in full force as an adjudication until it is judicially determined that such person has been restored to reason. Section 34 of the act concerning lunatics and habitual drunkards provides:

"No contract of any person found to be of unsound mind or an habitual drunkard, as hereinbefore specified, which shall be made without the consent of his guardian, shall be valid or binding; and such guardian may sue for and recover any money or property which may have been sold or disposed of by his ward without his consent."

It is said that this is an express statutory declaration rendering the contract absolutely void, and that the real estate of an insane person can only be disposed of in the manner pointed out by the statute, and that there can be no such thing as a ratification of an absolutely void contract. There are two main purposes to be subserved by trials in the probate court of persons alleged to be insane. One is that they may be placed in an asylum for treatment of their disease; the other, that they may be placed under guardianship, and their property taken care of. Section 5 of the act mentioned provides for a jury to try the question and contains a form of verdict which seems to be framed mainly to meet the first purpose named, and contains nothing with reference to whether the person is capable of managing his or her affairs. There are, doubtless, cases where a person is diseased in mind, and needs medical treatment, yet is entirely capable of managing his business affairs, though a finding of insanity ordinarily implies incapacity to transact business. Whatever the reason therefor may have been in this case, there was no finding by the jury of incapacity on the part of Catherine Felitz to manage her affairs, and no guardian was ever appointed for her person or estate by the probate court. Section 37 of this act makes provision for inquiring into the question of the restoration of a person of unsound mind or an habitual drunkard, and by the succeeding section it is provided that, if it be found that such person has been restored, he shall be discharged from care and custody, and his guardian shall immediately settle his accounts. The question presented, then, is, whether a person who has been adjudged insane and placed in an asylum for treatment, and has thereafter been discharged from the asylum because of her improved condition is conclusively presumed to continue insane, notwithstanding the fact that she has no guardian and is not under treatment for insanity, until a formal adjudication shall be had finding that she has been restored to her reason. After her discharge from the asylum, and after her restoration to reason, in fact, the only purposes such an adjudication could serve would be to discharge her guardian, if she had one, to restore her to the...