Lantis v. Davidson

56 P. 745, 60 Kan. 389

• Court: Supreme Court of Kansas
• Decided: April 8, 1899
• Docket: No. 10879
• Status: Published

Opinion

The opinion of the court was delivered by

Smith, J.:

The case is presented to us upon the pleadings, conclusions of fact, and the decree. No evidence is jireserved in the record. The plaintiff in error earnestly contends that the action was barred by the statute of limitations. We cannot concur in this claim. In the first conclusion of fact the court found that Samuel E. Davidson, at the time of the rendition of the judgment, in October, 1879, was not of sound mind and memory, and was incapable of understanding or comprehending his rights and duties in said action or his relations thereto, and that the judgment first obtained by Timmons was afterward vacated and a new and different judgment rendered in the cause after Davidson had been sent to the insane asylum, and without notice to him or any one representing him.

The averment in the petition of plaintiff below that he employed counsel to protect and guard his interests and to procure a vacation of the judgment is not a direct negation of the conclusions of fact found as above. At’the time the judgment was rendered Davidson was in a demented condition ; and this fact being established, his disordered mental state was presumed to continue. A judgment confessed by an insane person may be set aside. (Crawford v. Thompson, 161 Ill. 161, 43 N. E. 617.) Instead of vacating the judgment, the attorney Clark, in October, 1881, obtained a nunc pro tunc order in the case modifying the same, which order contained a judgment in his (Clark’s) favor for $360 against Davidson. At the time this order was made Davidson was confined in the insane asylum. ' The sections of the statute applicable to the case read :

"Proceedings to vacate or modify a judgment or order for the causes mentioned in subdivisions 4, 5 and 7 of section 568 (the next preceding section) must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or person of unsound mind, and then within two years after the removal of such disability.” (Gen. Stat. 1897, ch. 95, § 602; Gen. Stat. 1889, ¶ 4676.)

"Any person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed.” (Gen. Stat. 1897, ch. 95, § 11; Gen. Stat. 1889, ¶ 4094.)

It appears that from October, 1879, until July, 1893, the plaintiff below was of unsound mind and incapable of managing his own affairs. This action was commenced in the district court September 6, 1894,.less than two years after his disability was removed. The plaintiff in error contends that the period of Davidson’s disability should commence in July, 1881, from the date he was adjudged by the probate court to be insane. .This adjudication, however, was only better evidence of insanity, the district court having found that Davidson was incapable of managing his own affairs and that he was of unsound mind at the time of ■the rendition of the judgment. Insanity frequently exists before a judicial determination of that fact has been had. The adjudication overcomes the presumption that the party is sane. It does not follow that because there is no adjudication there is no insanity. A legal disability may rest upon a person of unsound mind, although the question of his insanity may never have been the subject of judicial inquiry. Section 13, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4096), has no applicationto this case.

It is contended that, as the original judgment was rendered against Samuel E. Davidson and Sarah J. Davidson, they both must join in the action to set it aside. The question of a defect of parties plaintiff was not raised in the court below, either by demurrer or answer, and hence cannot be considered here.

(Parker v. Wiggins, 10 Kan. 420; Seip v. Tilghman, 23 id. 289.)

The court having found that the plaintiff in error, George H. Lantis, had ful-1 notice and knowledge of the facts and circumstances involved in and surrounding the obtaining of the judgments in favor of said Clark and Timmons, and of the relations of Clark to Davidson, he cannot be protected as an innocent purchaser of the property.

The judgment of the court below will be affirmed.