Field & Adams v. Lucas , 21 Ga. 447 ( 1857 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The first error complained of is, that the suit was brought in the name of the guardian instead of that of the lunatic.

It seems ta be the practice in England, for the non compos himself to be a party plaintiff when suing and a party defendant when sued. But the reason is, his estate is not vested in his guardian, upon inquisition found. The title remains in the lunatic himself. Not so under the laws of this State. Cobb 342. Certainly the right of possession, if not of title, under our laws, vests in the guardian, and this entitles him to sue in his own name to recover the property of his ward, or damages for its wrongful conversion,

[2.] It is next insisted, that the order of the Court, declaring Littleberry Lucas a lunatic and appointing Cmcinnatus Lucas, his son, his guardian, is a nullity. The statute authorizing this proceeding seems to have been strictly pursued : True, thirteen men instead of twelve, made the report. The Act requires the commission to be directed to eighteen, any twelve of whom shall execute it. The fact that thirteen acted, does not vitiate the proceeding. This is not one of the cases, where the cabalistic number twelve in imitation of the twelve signs of the Zodiac, twelve months in the year; twelve Patriarchs; twelve Apostles, &c., must be strictly observed. Had all eighteen united in the report, perhaps it, perhaps it would have strengthened, instead of destroying the report. They do not find a verdict, that mystic thing, that requires to be so strictly observed. They report only. Indeed, all the departures from the law which are complained of, are but irregularities which do not affect the judgment, and cannot be attacked, collaterally, if they did.

[3.] While the letters of guardianship remained unrevoked, was it competent for the defendant to show that the lunatic was capable of contracting? The authorities are in conflict upon this point. In the different States of this country, it is provided by statute, that upon representation or request, idiots, lunatics, drunkards, and other persons of unbound mind, may be put under guardianship; and in such cases, the finding of the fact of lunacy by a competent Court and the appointment thereby of a guardian, is conclusive evidence of unsoundness of mind, so as to render all contracts, subsequently entered into by the lunatic, void, (14. Pick. 280; 1. Mass. Rep. 543; 12. Barbour 235; 14. Ib. 169; 2. Paige 422,) unless in cases of absolute necessaries supplied to the lunatic under special circumstances. 8. N. Hamp. Rep. 569. But the authorities do not agree even in this country. In Hart vs. Deamer, 6. Wend. Rep. 497, it was held that an inquisition taken under a writ, de lunatico inquirendo, is admissible, though not conclusive, evidence to prove the lunacy of an obligor in an action of debt on bond; and Chief Justice Savage who delivered the opinion of the Court, referred to the case of Bagley vs. Bales, 8. Johns. R. 186.; 15. Johns. 98, and 15. Id. 147, and said, many more might be added in which inquisitions had been received as competent, though not conclusive, evidence.

So in the matter of Gangwere’s estate, (14. Penn. Rep. 417, the Court held, that an inquisition of lunacy finding the party a lunatic without lucid intervals, is prima facie evidence, but not conclusive; and that even a petitioner for the proceeding, who was a witness also, is not estopped from asserting the truth against it, and showing that the party had lucid intervals. And in Hutchinson vs. Sandt, 4. Rawle 234, it was held that one of the inquest himself was not estopped, and that the finding was persuasive evidence only.

In Hopson vs. Boyd, 6. B. Monroe’s Rep. 296, the Court held that an inquisition of lunacy is only prima facie evidence against strangers; and is entitled to but little weight in Kentucky, unless it find the subject to be an idiot from birth.

The same doctrine is maintained in Doe ex dem. Morris Aber, and Morris Aber, Jun. against John Clark, 5 Holstead’s Rep. 217; namely, that an inquisition of lunacy is not conclusive against any person, not a party to it, and that when admitted in, evidence, the party against whom it is used, may introduce proof, that the alleged lunatic was of sound mind at any period of time covered by the inquisition.

In England, the rule is "considered well settled by Mr., Shelford in his work on lunacy, page 290, and by Mr. Stoiy in his treatise on contracts, that ah inquisition only creates presumptive evidence of lunacy, as to third persons. See also, 2. Atkyn 412-13; Sergerson vs. Sealey; Collison 389 §1.2.3.; Farlan vs. Silk, ex'r, &c. 3. Camp. 126; 3. Atkyn 184; 9. Ves. 605; 2. Madd. 578; 1. Wm. Black. Rep. 365.

Some of the Courts (see the case in 14. Pick.) in this country state, the reason for the English rule does not apply here. We are unable to satisfy ourselves of the truth of this assumption. While we appreciate the evils, not to say the great inconveniencies that must result, from not holding the judgment of the Ordinaiy conclusive, until the letters of guardianship are revoked, still as the doctrine appears to be well settled in England, and our own Courts are divided, we think it safest perhaps to hold that the inquisition is not conclusive upon third persons, not parties to it; still we must say, that it should require the clearest and most satisfactory proof, that the alleged lunatic was of sound mind, and had been fairly dealt with in a contract made with him at a period of time covered by the letters of guardianship. For myself I am free to say that I am not entirely content with the judgment, and I know not that my colleagues have come rather reluctantly to this conclusion. Perhaps the Legislature would do well to intervene upon this subject.

Judgment reversed.