
    INVALIDITY OF DEED EXECUTED BY ONE UNDER GUARDIANSHIP.
    Common Pleas Court of Montgomery County.
    A. J. Fiorni and Arthur E. Leen, Guardians, v. Simeon A. Goss et al.
    Decided May 18, 1921.
    
      Guardian and Ward—What Appointment of Guardian for an Incompetent Imports—Deed Executed 6y the Ward Without Force or) Effect.
    
    The appointment of a guardian for an aged man on the ground of incapacity to care for his property imports a finding by the court of such infirmity, and a transfer of property by him after such an appointment has been made is void and may be set aside and 'the title quieted to the property thus sought to be conveyed.
   .'Snediker, J.

The plaintiffs in this case were on the 18th day of February, 1920, appointed guardians of the estate of Joseph B. Butt, who was on that day found by the probate court to be incapable of taking care of his property, and therefore, a proper subject of guardianship. An entry of the appointment is on file in the probate court endorsed as of February 18, 1920.

In his old age, and but nine days before a guardian was appointed for him, Butt married a wife, and it was with an idea of protecting him against any possibility of her securing his estate through his susceptibility as well as for the general reason of protection to him, that these guardians were appointed. Notwithstanding the appointment of February 18, 1920, Butt and his wife entered into negotiations with the defendant, Simeon A. Goss, for the sale of a tract of land belonging to Butt situated in Miami township, this county. As a result of these negotiations there was executed and delivered by Butt and his wife by themselves individually, and without the knowledge or interposition of Butt’s guardians, a deed to the property in .question. There was an investigation made of the title to this property by Goss, through his counsel, and it was not discovered that Butt was under guardianship. Goss made his check to Joseph B. Butt for the purchase price in the sum of $967. Butt, as had been anticipated, endorsed the check to his wife, Sally, who collected the check and disappeared, and her whereabouts, has to this time been unknown, and no benefit actually accrued to Butt by reason of the transaction. No part of the purchase price ever came into the hands of his guardians. The whole affair was without authority, knowledge, consent or order of the probate court.

These plaintiffs now come into this court for the purpose of having the deed made by Butt to Goss set aside and the title of their ward quieted in the real estate in question. The plaintiffs were appointed guardians under Section 10989 of the General Code which provides:

“Upon satisfactory proof that a person resident of a county, or having legal settlement'in any township thereof, is an idiot, or imbecile or a lunatic or an incompetent by reason of advanced age or mental or physical disability or infirmity, the probate court shall appoint a guardian for such person,” etc.

This section formerly was modified by an act passed April 27, 1872, which provided, among other things: “That such appointment shall be regarded only as prima facie evidence of imbecility.” But the act last mentioned was repealed, and there was at the time of the appointment in this case, no such qualifying provision. The law was as we have first stated it.

When the probate court made its finding on February 18, 1020, it was entitled to full credit. As said' by Black (referring to the 16 O. S., p. 45) in his work on Judgments, at Section 645:

“The action of the proper court in making appointment of a guardian, is also invested with the character of conclusiveness. Thus in Ohio plenary and exclusive original jurisdiction is given by law to the probate courts in the matter of appointment of guardians, and that jurisdiction attaches in any given case whenever application is duly made for its exercise therein. Such proceedings are not inter-parties or adversary in their character, but are properly proceedings in rem, and the order of appointment made in the exercise of jurisdiction binds all the world, and the record showing nothing to the contrary, it will be conclusively presumed in all collateral proceedings that such order was made upon full proof of all the facts neces.sary to authorize it.”

It is, therefore, not our privilege to inquire in this case as to the propriety of such appointment. These guardians having been appointed, what was the effect thereof!

In the 31 O. S., at page 247, in the body of the opinion, Judge Mcllvaine says: “The estate of an insane person passes to his guardian by relation as of the date of'the adjudication of insanity, as in case of a deceased person it passes to the executor or administrator as of the date of the death.”

In the 39 O. S., pp. 58-61, Judge Doyle says:

“The general power of a guardian over the real estate of his ward is to manage it for the best interest of the' ward and to receive and account for the rents and profits. He may lease it but not beyond the term of the guardianship. He can not sell or convey any part of it. The power to sell and convey must be conferred by statute. The jurisdiction of courts of chancery to order the sale rested upon statutory provision. A guardian has no power in this state, where the subject is regulated by statute, to sell the estate of his ward except by order of the probate court in a proceeding properly instituted for that purpose.”

It may be said that when the court upon inquiry finds a guardian to be necessary for the estate of any particular person, it takes charge of his property and appoints one who manages it for the bést interest of the ward under its supervision and control. In this state a sale of the real estate of the ward at any time after the appointment may only be made 'after application pursuant to the statute and when authorized by the court.

The ease at bar is not like the case of Hosler v. Beard, in the 54 O. S., at page 398, which was quoted by counsel for the defendants. At the time the note in that case was signed by Beard he had not been adjudged an imbecile. When there has been no- such adjudication the rule is that where the state of mind of the imbecile was unknown to one contracting with him and no advantage was taken of the imbecile, the defense of imbecility can not prevail especially where the contract is not merely executory, but executed in whole or in part and the parties can not be restored altogether to their original positions. Where there has not been such a finding by a court one dealing with a lunatic may reasonably suppose he is sane and make a bargain with him on that assumption, and if no unfair advantage is taken of him the contract may stand.

As said by the Supreme Court of New Hampshire, 48 N. II., 133: “Where a person apparently of sound mind and not known to be otherwise, enters into a contract for the purchase of property which is beneficial to the purchaser and otherwise fair and bona fide, and which has been fully completed, paid for and enjoyed, and can not be restored so as to put the parties in statu quo, such contract will not afterwards be set aside either by the lunatic or his representatives.” But when a guardian is appointed he thereupon becomes vested with the control of the property of his ward and he alone is capable of transferring it. It is the appointment of a guardian which ivorks the change in the legal potver of an imbecile to act for himself.'

As said by Judge Taft in the case of Jordan, Guardian, v. Dickson et al, 19 W. L. B., p. 64:

“The due appointment by the probate court of a guardian for a person as an idiot, imbecile or lunatic is conclusive evidence of such person’s incapacity to make or ratify contracts to do any act in derogation of his guardian’s authority pending guardianship. ’ ’

The Court of Appeals of New York, 116 N. Y., pp. 67-73, say:

“All contracts of a lunatic, habitual drunkard or person of unsound mind made after an interposition and affirmation thereof are absolutely void until by permission of the court he is allowed to assume control of his property. In such cases the lunacy record, as long as it remains in force, is conclusive evidence of incapacity.”

In 105 Mo., pp. 431-454, the Supreme Court of that state say in the opinion::

“But the law is settled in our state that a contract made by an insane person in ward is absolutely void; but that a contract made by an insane person not in ward is only voidable, and that courts will not set it aside without restoring the parties to their original position.”

In 92 Federal Reporter, p. 811, the court holds:

“The deed of a person under guardianship by reason of incapacity to manage his own affairs in consequence of habitual drunkenness is void.”

At section 255 Black, in his work on Rescission and Cancellation, says:

“The rule almost universally prevailing in modern times is that the contracts as well as. the deeds and .conveyance of a person who is actually insane at the time, but not judicially so“ adjudged, and not under guardianship, are voidable for that cause, on equitable principles, but not absolutely void.” And at Section 259, he says: “And judicial determination that a given person is insane when reached in a direct proceeding for that purpose, such as an inquisition of lunacy or other appropriate proceeding, is not only a judgment i» rem, such as to give constructive notice of the fact to all the world, but also it raises conclusive presumption that the person is incompetent to enter into any binding contract or make a valid deed.

In the ease of Carter v. Beckwith et al, 128 N. Y., 312, the first syllabus is:

“One who has been judicially determined to be a lunatic and for whom a committee has been appointed is incapable of entering into a contract, and any contract he assumes to make is absolutely void. ’ ’

In the 3 Ky. Reports, p. 659, the case of Pearl v. McDowell, the first syllabue is:

“After office found contracts of idiots or lunatics are void.”

In the 8 N. Y. Reports, p. 338, the case of Wadsworth v. Sharpsteen et al, the court of appeals say:

“After one has by inquisition been found an habitual drunkard he may not until it is vacated or a commission therein supersede, even in his sober intervals, make contracts to bind himself or his property.”

In the case of Reynolds, Appellant, v. Gerner, 80 Mo. Rep., p. 474, the Supreme Court hold

“The deed of an insane person after being placed under guar dianship will be absolutely void, and the guardianship is conclusive respecting the disability of the ward whether he be insane or not; and it is immaterial from what cause his insanity resulted, whether from old age, sickness, habitual drunkenness or other causes whatever. The assent of a guardian of an insane person.to the latter’s deed confers upon that instrument.no element of validity.”

In 84 Mo. App. p. 332, the court say;

“The judgment of a probate court adjudging a person insane and appointing a guardian is conclusive in regard to such person’s competency to make ordinary contracts, and render such contracts absolutely void.”

If Butt’s deed be held to be void it may be said by counsel for defendants that some equity ought to intervene on behalf of Goss, because he is an innocent person. Replying to this suggestion, Black in his work on Rescission and Cancellation, at Section 254, says: “The doctrine that where one of two innocent persons must suffer, the loss should fall on him who made the condition possible, lias no application to cases where it is sought to set aside a deed on the ground of the insanity of the grantor, for an insane person can not be held responsible for consequences which he could not understand or prevent. ’ ’

The appointment having been made under a petition which averred that Butt was incompetent by reason o-f advanced age and mental infirmity, to take care of and preserve his property, we are led to the conclusion that the court so found, and it is not difficult for us to make application of the decisions heretofore quoted. On the whole we are constrained to find’ that the plaintiffs are entitled to the relief prayed for in their petition, and an entry may be drawn accordingly.  