
    CASE S3. — ACTION BY ROSE SMITH AGAINST MARGARET RUEHL.
    November 9, 1909.
    Smith v. Ruehl
    Appeal from Campbell Circuit Court.
    Judgment for defendant, plaintiff appeals.
    Reversed.
    1. Insane Persons — Insane Husband — Lands—Sale by Wife— Proceedings. — Ky. St. Sec. 2131, provides that when a husband has become permanently deranged the wife may be empowered by decree to convey by her own deed any of her real estate freed as to it and its proceeds from any claim of her husband, providing that the husband shall have been adjudged a lunatic by a court of competent jurisdiction. Held, that where á wife, whose husband has been duly declared insane, filed an ex parte petition in the circuit court stating the facts and with it an authenticated copy of the record showing the lunacy adjudication and prayed for a decree authorizing the sale of her land free from any claim of her husband, and a guardian ad litem was appointed, a decree granting the relief prayed without any evidence other than the record of the inquest, and without having before the court • any person representing the husband, was not objectionable for failure to make the husband’s committee or guardian, if any, a party defendant.
    2. Insane Persons — Adjudication of Insanity — Conclusiveness. A judgment of the circuit court adjudging a husband a lunatic was conclusive in a subsequent proceeding by the wife to obtain a decree authorizing'a sale of her land free from any interest of the husband as provided by Ky. St. Sec. 2431.
    FRANK V. BENTON and HENRY A. FABER for appellant.
    • WILLIAM U. WARREN for appellee
    No briefs. Record’misplaced.
   Opinion of the Court by

Judge Carroll

Reversing.

In a suit by the appellant to enforce specifically a contract for the sale of real estate purchased from her by the appellee, the appellee defended upon'the ground that the appellant could not make a good title. The lower court sustained her defense, and the appellant has brought the case here.

The appellant’s immediate vendor obtained the land from a Mrs. Puff, and the only question in the ease is whether or not Mrs. Puff conveyed a good title. In 1906 Henry Puff, the husband of Mrs. Puff,' was adjudged by the circuit court of Campbell county, in a proceeding instituted for that purpose, to be a person of unsound mind and a lunatic, and he was ordered to be and was confined in one of the state institutions for the insane. Afterwards his wife filed her ex parte petition in the Campbell circuit court, in which she .set out that she was the owner of certain described land, and that her husband, who had been adjudged a lunatic, was incurable and confined in the state asylum for the insane, and she prayed for a decree that she have the right to dispose of any real estate that she then owned • or might thereafter acquire, free fróm. any claim of her husband. Although neither the husband, nor any person, was made a party to the petition, a summons was issued against him and executed as provided in section 53 of the Code upon the superintendent of the asylum in which he was confined. Thereafter a guardian ad litem was appointed and when his report was filed the court, without hearing any evidence, except the record of the inquest, or having before it any person representing the husband, entered a judgment decreeing that “ the petitioner, Kate Puff, may by her own deed sell and convey any of her real estate freed as to it and its proceeds from any claim of her husband.”

It is insisted that this proceeding was void, upon the ground that it was necessary under the statute that the husband, and his committee or guardian, if he had one, should be made a party defendant to the action, and a summons executed upon either the committee, father or guardian. Secton 2131 of the Kentucky .Statutes, under which the proceeding by Mrs. Puff was instituted, reads as follows: “When the husband abandons the wife and lives separate and apart from her, or abandons her without making sufficient provision for her maintenance, or when he is confined in the penitentiary for an unexpired term of more than one year, or when he becomes permanently deranged in his mind, the wife, by judgment of a court of equity, may be empowered to sell and convey by her own deed any of her real estate freed as to it and its proceeds from any claim of her husband; provided, that in ease of insanity he shall have been adjudged a lunatic by a court of competent jurisdiction.” Under this statute it is not, in our opinion, necessary that the wife shall do more, in a case like the one before us, than file her ex parte petition in the circuit court, stating the facts, and with it file an authenticated copy of the record showing that the husband has been adjudged a lunatic by a court of competent jurisdiction. The manner in which a husband may be divested of his interest in the estate of his wife is entirely within the control of the legislative department of the state, and it seems that the Legislature only deemed it necessary that the wife should bring to the notice of the chancellor by her petition- the disability under which her husband was laboring, and that then the court might make such orders as were necessary to grant the relief desired without service of process upon any person or the appointment of a guardian ad litem. It would probably have been better if the Legislature had prescribed more definitely the practice or method of procedure, or have directed that the committee or guardian or some person interested in the person and estate of the person of unsound mind should be brought before the court to represent his interests; but it did not see proper to do this, and we do not feel authorized to supply by judicial interpretation a system of practice and procedure that the legislative department did not deem it necessary to incorporate in the statute.

We are confirmed in the correctness of our construction of the statute by the fact.that sec. 2145 in the same chapter in the statute, directing how the inchoate right of dower of an insane married woman may be divested upon the petition of her husband, provides that: “The wife and her committee, if she have one, shall be made defendants to said action; if she have no committee, the court shall appoint an attorney to defend for her, * * * and if the court be satisfied by the proof that the wife is a confirmed lunatic, it may adjudge the sale and conveyance of her inchoate right of dower in said land; and if she Las a committee, the court may direct that he unite with the husband in the deed conveying said land; or if she has no committee, the court shall appoint a commissioner, who shall unite with the husband in such conveyance. A deed so executed shall pass such wife’s inchoate right of dower. Before any judgment pursuant to this section shall be rendered, the husband, with at least two good sureties, shall execute, before the court, a covenant to the commonwealth for the benefit of the wife, to be approved by the-court, that she shall be paid the value of her right of dower in said land should such right thereafter become complete.” It will thus be seen that, in providing for the sale of land in which an insane wife has an inchoate right of dower, particular care is taken to protect her interest, and if the Legislature had intended that the same or a similar practice should be followed in a proceeding to divest the hus • band of his interest it would have so declared. Why the Legislature did not see proper to guard as carefully the interest of the husband as that of the wife, we are unable to say; but that it did not is manifest from the sections of the statute quoted.

This view of the case renders it unnecessary to consider the regularity of the process served upon the husband. Mrs. Puff filed with her petition copies of the records of the Campbell circuit court showing that her husband was in that court adjudged to be a lunatic. The judgment of that court and the orders appearing are conclusive in this action of the question that the proceedings in the Campbell circuit court by which the husband was adjudged a lunatic were-regular. Crown Real Estate Co. v. Rogers (Ky.) 117 S. W. 275.

Wherefore the judgment of the lower court is reversed for proceedings in conformity with this opinion.  