Blinn v. Schwarz

O’Brien, J.: There are two principal questions presented upon this appeal, one as to the error which it is alleged was committed by the court in refusing to permit the jury to determine whether the plaintiff, at the time of the giving of the deed, was or was not insane; and the other relating to the complaint in the action brought by the plaintiff against Henry Ungrich, which was introduced in evidence and to the admission of which thereafter the plaintiff excepted. The first question is one easily disposed of, because the determination of the jury one way or another, as to the plaintiff’s sanity at [28] the time of the making of the deed, would not be conclusive upon the merits. Although cases can be found holding that the acts and deeds of an insane person are absolutely void and later cases are.in favor of the holding that they are voidable only at the election of the insane person or those who succeed to his rights, it is now the rule that, whether void or voidable, it is competent to make the acts of an insane person valid by ratification or election. This of course presupposes a complete knowledge of the facts at the time the election or ratification is made. But whether or not the deed is void or voidable (the only difference being that as to a voidable deed, it is necessary to take some action in disaffirmance, while as to a void deed that is unnecessary) is not conclusive upon the rights of the parties. Here the question is whether or not there was an election or ratification on the part of the plaintiff upon discovering that the consideration money had been paid to his agent and that other property had- been disposed of by him. He could reclaim the property or obtain, by ratifying and affirming his attorney’s acts, the money paid for this particular property. There was no request to go to the jury upon this question of whether there had been an election- of remedies even if it were a question of fact. It was upon the ground that he had elected a remedy inconsistent with the right to follow the defendants and reclaim the property that the case turned upon the trial. We are thus brought to. the second exception bearing upon the admissibility. of the complaint in the. plaintiff’s action against his agent. That action is still pending to recover from him, together with other relief, the very moneys which had been paid by these defendants to such attorney. The plaintiff urges fhat this complaint was immaterial and was improperly admitted because not within the issues. Upon the trial, however, the objection was not taken that it was not within the issues, the. sole objection being that it was immaterial. We think it was clearly material and also that it was within the issues for the answer had set up as a defense a general denial of the plaintiff’s allegation that the property was wrongfully withheld by the defendants. They had, therefore, the right to show any facts to establish that at the time of the trial the deed was plaintiff’s deed. This complaint introduced in evidence shows that the plaintiff averred that the power of attorney which he [29] had given had “ never been revoked; ” that the attorney had received moneys from those to whom he had given plaintiff’s property and that the power was given for the reason that the plaintiff was at the time “ in ill health.” It will be seen that the complaint makes no allegation that the plaintiff was insane when the power was given, and in this connection it appears that there was no request to have the jury determine whether he was insane at such time, the request made confining the time to the date when the deed was made. It would make no difference, however, had it been made because it clearly appears that the plaintiff ratified and affirmed the ¡lower and that he relied upon it and was seeking to receive from his attorney .the money received for this very property. The plaintiff admitted that at the time of the bringing of the action against his attorney he was sane. And to destroy the force of the election thus made, no request was made to go to the jury as to plaintiff’s ignorance of the real facts when he sued his agent. We think, therefore, that the complaint was properly admitted and that it shows that the plaintiff had ratified his attorney’s acts and that he had elected to recover of the attorney. Having so ratified, the contention that the deed is void is answered because it was within the power of the plaintiff to elect to pursue an action against his attorney rather than seek to obtain a return of the property. Here there was no offer to return to the defendants any of the moneys which it appears that they advanced; and if it be assumed that the plaintiff could succeed in both of the actions which he has brought, he would not only obtain possession of the consideration price which had been paid but would also get the property itself. We think that, having elected to pursue the former remedy, he cannot succeed as against these defendants and obtain the property. The exceptions accordingly should be overruled and defendants should have judgment on the verdict as directed, with costs. Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred.