Walker v. Coates

• Decision Date: 05 December 1896
• Docket Number: 128
• Citation: 5 Kan.App. 209,47 P. 158
• Parties: ASA WALKER, as Guardian, v. DANIEL S. COATES et al
• Court: Kansas Court of Appeals

47 P. 158

5 Kan.App. 209

ASA WALKER, as Guardian, v. DANIEL S. COATES et al

No. 128

Court of Appeals of Kansas, Northern Department, Central Division

December 5, 1896

December 5, 1896,

Error from Smith District Court. Hon. Cyrus Heren, Judge. Reversed.

This is an action brought in the District Court of Smith County by Asa Walker, guardian, to recover from Daniel S. Coates and Roxana D. Coates, his wife, the amount due on a promissory note executed by them in the principal sum of nine hundred dollars, bearing date April 23, 1889, payable to Willis G Myers, and by him indorsed to the plaintiff; and also to foreclose a real-estate mortgage, in the form of a deed of trust, given by Coates and wife to Edward E. Holmes, trustee to secure the payment of said note. Daniel S. Coates although personally served with summons, made default. Several months after the commencement of the action, one W E. Coates, as guardian of Daniel S. Coates, was made a party defendant, and he and Roxana D. Coates filed their separate answers. In these they denied generally the allegations of the petition; alleged that, at the time of the execution of the pretended mortgage mentioned in the petition, the real estate therein described was the homestead of said Daniel S. and Roxana D. Coates; that said pretended mortgage was not executed by their joint consent; that at the time of the execution of the said instrument sued on the said Daniel S. Coates was insane, and had been so declared by the Probate Court of Smith County, and that he was incapable of giving his consent to the making of any contract at the time of the execution of the said pretended mortgage; and prayed that the same be canceled and held for naught. The reply of the plaintiff denied each and every allegation of new matter contained in the answers. It also alleged specifically that at the time of the execution of the note and mortgage Daniel S. Coates was of sound mind; that the mortgage was given and the money loaned thereon in good faith; that at that time there was nothing in the appearance or conduct of the husband to indicate that he was of unsound mind or incapable of the transaction of business, but that he was then apparently in possession of his mental faculties, and was engaged in the transaction of business for himself; that, at the time of making said note and mortgage, there were two mortgage liens on the land, amounting to $ 666, which were paid for the joint benefit of the defendants out of the proceeds of the note and mortgage in suit, the residue being applied by them to their joint use. The plaintiff recovered a verdict and personal judgment against Roxana D. Coates for the amount due on the note, but was denied a judgment against Daniel S. Coates and a decree foreclosing the mortgage. He brings the case here for review.

Judgment reversed and cause remanded.

Cook & Gossett, for plaintiff in error.

No appearance for defendants in error.

OPINION

CLARK, J.

The principal errors complained of are, the various rulings of the court upon the admission of evidence offered, and the instructions to the jury. Under the pleadings, the court properly held that the burden of proof was on the defendants. They proved that the real estate mortgaged was the homestead of the mortgagors, who were husband and wife; that the husband, upon proceedings instituted in the Probate Court of Smith County, was, on December 6, 1879, duly adjudged to be of unsound mind, and an order was then issued for his commitment to the State Insane Asylum; that similar proceedings were instituted in said court on January 29 1884, and January 25, 1888, respectively, and in each instance he was again adjudged insane and ordered to be committed to the asylum. The record shows that no guardian, either of his person or estate, was appointed until after the commencement of this action. The court overruled a demurrer to the evidence of the defendants, and sustained objections to the introduction of evidence by the plaintiff tending to show that the mental disease to which Daniel S. Coates was subject was not chronic in its nature; that he had been discharged from the State Insane Asylum in the years 1884, 1887, and 1888, respectively, restored to his right mind; that he had been regularly adjudged insane on May 20, 1889, by the probate court, and committed to the asylum; that he was discharged therefrom on August 20, 1889, restored to his right mind; that he was again adjudged insane on April 25, 1890, and thereafter again committed to the asylum, where he was confined at the time of the trial of this action; and that the defendant, W. E. Coates, was in 1892 duly appointed guardian of his person and estate. The plaintiff also sought to introduce evidence tending to show the conduct and appearance of the husband, and the actual condition of his mind at the time he executed the note and mortgage sued on, and the disposition that was made of the proceeds of the loan; but the court ruled that such evidence was irrelevant and immaterial. The act concerning lunatics and drunkards, chapter 60, General Statutes of 1889, in substance provides, that upon an inquisition of insanity, if the jury should find that the subject of the inquiry is insane and is a fit person to be sent to the insane asylum, the court should enter an order that he be so committed, and should appoint a guardian of his person and estate, who should publish notice of his appointment, take possession and control...