
    Petrie and another vs. T. C. & J. Shoemaker.
    
      Ejectment cannot tic brought by a committee of the person, mid estate of an individual in respect to whom a writ in the nature of a writ de lunático inquirendo had been issued, and an inqui - sition found that he was then incapable, &c.
    The effect of a deed of land executed by such individual alluded to.
    This was an action of ejectment, tried at the Herkimer circuit in November, 1838, before the Hon. John Willard, one of the circuit judges.
    
      On a commission out of chancery, it was found by inquisition in June, 1838, that Augustinus Osterhout was then, and had from his nativity been of unsound and imbecile mind, deprived of reason and understanding, and laboring under weakness of intellect, so as wholly to incapacitate him to conduct his own affairs, and to govern and manage his own business and property. The plaintiffs were thereupon appointed a committee of his own person and estate, and brought this action to recover forty acres of land which the father of Augustinus had conveyed to him many years before.
    The defendants gave in evidence a deed of the premises in question from Augustinus to Frederick Osterhout, dated July 2, 1817, which had been acknowledged and recorded about one year after its date ; and then showed a regular deduction of title from the grantee to themselves ; they also proved that possession had been held under the deed to Frederick Osterhout from its date down to the time of the trial. Evidence was given by [ *86 ] both parties in relation to *the capacity of Augustinus to transact business ; and the plaintiffs gave evidence tending to show that he wasf imposed upon in relation to the payment of the consideration money at the time the deed was given. The judge refused to non-suit the plaintiffs on the ground of twenty years adverse possession, and under his charge the jury found a verdict for the plaintiffs. The defendants now move for a new trial on a case.
    
      M. T. Reynolds, for defendants.
    
      J. A. Spencer, for plaintiffs.
   By the Court,

Bronson, J.

Augustinus Osterhout is neither an idiot nor a lunatic in the legal sense of those terms, though a man of great imbecility of mind. Whether his deed to Frederick Osterhout is void or not, may be a very doubtful question. See Matter of Barker, 2 Johns. Ch. R. 232; Jackson v. King, 4 Cowen, 207; Odell v. Buck, 21 Wendell, 142. But it is unnecessary to inquire whether the deed is of any force or not.

The action is wholly misconceived. It should have been brought in the name of the non compos. The committee have no estate in his lands. They are regarded as mere bailiffs acting under the direction of the court of chancery, which has the care and custody of idiots and lunatics, and of their real and personal estate. Shelford on Lunacy, 179, 180, 339. 1 Collinson on Lunacy, 270, ch. 28. 2 R. S. 52, tit. 2. 1 id. 634, tit. 3. It is of course unnecessary to notice the question of adverse possession.

New trial granted.  