Warlick v. . Plonk

Smith, C. J. (after stating the case). Without instituting an inquiry into the nature and extent of the disability which gives immunity to persons, thus designated in the statute, from the consequences of delay in bringing suit when their rights of property are involved, we think the instruction of the Judge leaves nothing unsaid or given of which the appellant can complain. Quite as unfounded is his exception to what was said and done when the jury came into Court and announced their failure to agree upon a verdict. The directions given them were entirely fit and proper, as tending to bring about unanimity of opinion, after a full and free interchange of views among the jurors, and to prevent unnecessary mistrials. < But the verdict upon the issue of the insanity of the deceased is imperfect, and leaves undetermined the state and condition of his mind during the seven years next before his death. It establishes the insanity up to the beginning of this period, while the charge explicitly requires a finding of this fact up to the year 1885, and we are at a loss to know why the issue was framed so as not to embrace this additional time. If any inference is to be drawn from this omission as intentional, and not the result of inadvertence, it *85 would be that the insanity did not continue until death, but that reason was restored during life. If, then, the deceased recovered from this disability, and became of sound mind for a period of three years before the suit was begun, the bar would become complete, and the right to recover the land lost. But the case shows no change of mental condition before death, and the instruction covered the entire period up to death, during all of which a continuance of the unsound mind is made a condition of the plaintiffs’ right of recovery. The discrepancy does not admit of our acceptance of the finding of the issue, as a basis on which to render a final judgment in the cause, and we feel constrained to consider this lapsus as an imperfection in the form of the' issue tendered, and followed by a corresponding imperfection in the finding of fact, the correction of which can be made only by sending the cause back, to the end that a proper issue be submitted to" the jury. The judgment must be reversed, and a new trial had, and it is so adjudged. Error. Venire de novo.