
    NICHOLS et al. v. CLEMENT MORTGAGE CO.
    No. 13883
    Opinion Filed July 7, 1925.
    Rehearing Denied Oct. 20, 1925.
    1. Insane Persons — Contracts—Incompetents —Presumption from Licensed Marriage.
    By the provisions of Oomp. Stat. 1921, see. 4983, contracts of adjudged incompetents are void until restoration to capacity has been judicially determined, but under the provisions of Oomp. S'tlat. 1921, secs. 74S8, 7492, and 7497, the county judge, or the clerk under his direction, must find that applicants for marriage liicenfee are “legally competent of contracting” before a license shall issue. Therefore, where a person was adjudged inicompetent in 1909 because of excessive use of intoxicating liquor, and in 1917 Ithe judge of the county court in which such guardianship was pending permitted a marriage license to issue to the adjudged incompetent, the legal ‘capacity of the parties at that time to contract and Ithe validity of the marriage so authorized are supported by ithe strongest preSumptioni known to 'the l'aw.
    2. Same — Validity of Mortgage.
    In such a case, where such adjudged in- • competent and his wife thereafter execute a mortgage 'to secure a loan of mon!ey at a time when 'there is no actual guardianship being exercised, and the mortgagee acts in good faith in reliance upon the validity of ■the marriage and without actual intotice of the pendency of the guardianship proceedings, such mortgagee wnjl be protected in i.ts rights unless it clearly appears frota the evidence that the adjudged jncompeilent was in fact incompetent alt- the time of executing the mortgage.
    3. Same — Conflicting Statutes — Construction to Harmonize — Legislative Intent.
    It being apparent 'that a strict construction of the language of seotiom 4983, supra, vfould bring it in direct conflict with the provisions of seotionfe 7488, 7492, and 7497. supra, as applied to the facts in the instant case, such language should receive a liberal construction! if by so doing Ithey can be harmonized and all made effective. Mvi-df-nt.lv the legislative intent in section 4983 was to avoid, acts of the incompetent in conflict with the authority -and powers of the guardian. This legislative in-tenlt is effectuated by construing section 4988 to mean that contracts of the adjudged incompetent, are absolutely void when there is an actual guardianship being exercised.
    (Syllabus by Logsdon, 0.)
    Crunmissipners’ Opinion. Division No. 1.
    Error from District Court, Johnston County; J. H. Linebaugh, Judge.
    Action by Clement Mortgage Company, a colouration, against Clyde (Nichols et al. J idiment for plaintiff, and defendants bring error.
    Affirmed.
    This action was .commenced June 12, 1920, by plaintiff filing its petition in ¡the district court ¡of Johnston county to recover from the defendants thereiml ithe sum of $1,200, and interest, and to foreclose a mortgage executed February S, 1919, by defendants, Clyde Nicho-ls -and Edna Wior-ley Nichols-, to secure the payment of said indebtedntess. The pati-iion was in the usual form for actions of this character, except that ini paragraph 5 of the petition üt. was alleged in substance that on February 20, 1909, Clyde Nichols was adjudged an iinlcompetent -by the county court of Carter county, and that bis mother, Susan M. Nichols, was appointed and qualified as guardiami; that she died in 1918, -and ¡that there was no actual guardianship at the date of the note and mortgage; that at the time of the execution of the nMe and mortgage sued on, plaintiff had no actual knowledge of the pendenley of the said guardianship proceedings, no record of the same having -been made l|nl Johnston county, where the land involved is situated, and th-ait ait libe lime of the execution of said mote and mortgage, there was nothing in the appearance or demeanor of the defendant Clyde Nichols to indicate that he was incompetent -ainld not fully capable of transacting business; that plaintiff acted in good faith in its .trainlsaotion with the defendants, .and that it loaned its m'ooey in good faith, and that the transaction between the parties was in all respects fair and reasonable.
    Defendants atatelwered by general denial, and further alleged the invalidity of the note and mortgage sued on by reason! of the adjudication of itnctanpatency entered -againtst Clyde Nichols in the county court of Carter county February 20, 1909; alleged the .pen-dency of said guardianship proceedings, and the continued inleo-mpeteney bf) Clyde Nichols at the date of the execution of the note and mortgage, and that the proceeds of said loau so made by plaintiff to defendants were received and used by the defendant Edna Worley Nichols, and that Clyde Nichols received no benefit Itherefrom.
    Upon the issues thus framed, the case was tried to the court May 3, 1922, and upon the trial the evidence developed substantially the facts alleged by the parties in their respective pleadings. The evidence showed that Clyde Nichols is a Chickasaw Indian of one-eighth blood, and is the al-lottee of the land in controversy; that he was adjudged ani incompetent in 1909, and his mother was duly appointed, qualified and ac-ted as guardian until her death in 1918; that in 1917, Clyde Nichols was married to Edna Worley by license duly issued by the clerk of the county court of Carter county, and that they have ever since Jived together as husbnd and wife: that after the death of his mother ini 1918, no other guardian was appointed for C-lyde Nichols until in April, 1919, Ivhen J. M. Dan-turd was appointed; that the note and mortgage in question were executed February 8, 1919. during the time when there was no actual guardianship in existence for the estate of the said Clyde Nichols.
    Alter hearing all of the evidence of the pai’ties, the trial court made findings ami entered its decree in favor of the plaintiff and’against the defendants for the sum of $1,298 with interest thereon at 6 per cent, from date of judgment and for costs, including $120 as attorney's fee. After unsuccessful motion for new trial, defendants have brought the case here by petition in error wih case-made attached for -review.
    Adams & Orr, for plaintiffs in error.
    J. B. Dudley, for defendant ini erro-r.
   Opinion by

LOGSDON, C.

All of the numerous assignments of error made in the petition in error are presented -and argued in the brief of plaintiffs in error under the single proposition that:

“The court erred -in rendering judgment in favor of the defendant in error ’ and against the .plaintiff in error.”

This brings under review, the entire record of the trial, and this toeing an equitable action, -this court is authorised to consider and weigh the evidence -and to affirm or reverse the decree, or to reu(der ia decree here- in conformity with equitable principles and the rights of the parties.

Reliance for reversal is placed upon the provisions of Comp. Stat. 1921, secs. 4981, 4982, 4983, decisions of this and other courts construing these -or similar statutes, and. upon an adjudication of incompetency entered against Clyde Nichols by the coud,ty court of Garter county on February 20, 10u9, resulting ip. tbe appointment and ■qualification of a guardian, and that tbe adjudication of inlcompetency was never vacated. Section 4988 is tbe only one of tbe three sections above cited Which it is material to ctousider in (tbe determination of this cause. Said section reads:

‘‘After bis incapacity bus been judicially determined a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until bis restoration to capacity is judicially determined. But if actually restored to capacity, be may make a will, though bis restoration i,s not thus determined.”

It is urged in the argument that tbe common-law rule, which rendered the contracts of one non compos voidable merely and not void, is abrogated in all jurisdictions having statutory provisions such as those above cited, and that the adjudication of incompetency is binding upon tbe world until vacated. This is considered to be a correct statement of tbe legal effect of such adjudication and is supported by authorities cited in tbe brief of defendants as follows: Elliott on. Contracts, vol. 1, sec. 37#* Hughes v. Jones (N. Y.) 15 Am. St. Rep. 886; Redden v. Baker, 86 Ind. 191; Kiehne v. Wessell, 53 Mo. App. 667; Mainzer v. Avrid, 177 N. Y. Supp. 596; Flach v. Gottschalk Co. (Md.) 71 Am. St. Rep. 412; L’Amoureux v. Crosby (N. Y.) 22 Am. Dec. 655: Devin v. Scott, 34 Ind. 67; Fitzhugh v. Wilcox, 12 Barb. 235; Wadsworth v. Sherman, 14 Barb. 169.

However, like most general rules announced t.o meat general conditions, this rule has its well defined and generally recognized exception. In tbe case of Thorpe v. Hanscom (Minn.) 66 N. W. 1, the court, after stating tbe general rule as here contended for by defendants, states tbe reason for the rule thus:

‘This rule is based upon convenience and necessity for tbe protection of the guardian, and ito enable him to properly discharge bis duties as such- Without this rule it would be difficult, if not impossible, for tbe guardian) to execute Ms trust, for in every action concerning tbe property of libe ward be might be obliged to gb before the jury upon the question of tbe ward’s sanity, and one jury might find one way and another the other way.”

The court Itihen stated tbe exception to the rule in this language:

“Noiw, when! the reason for the rule does not exist, this rule does not apply. Hence, if there is in fact no actual and subsisting guardianship, blit tbe same has been practically abandoned, and tbe person who has been under guardianship, after such abandonment, makes a deed at a time when be is in fact of soun|d mind, and tbe contract is fair, tbe deed will be enforced though tbe guardian has not been discharged by any judicial action.”

Tbe facts in) the Hanscom Case are very similar to those in tbe instant case, except that the guardian in that ease was not dead when tbe mortgage assailed was executed. The statutes of Minnesota of 1888, which were in force toben the case arose, are very similar in their provisions relating to the disabilities of adjudged incompetents to our olttml statutes above cited.

This exception to tbe general rule is recognized alike by text-writers and courts. Elliott on Contracts, vol. 1, sec. 378; Thompson on Real property, vol. 3, sec. 2835; Willworth v. Leonard (Mass.) 31 N. E. 299; Miller v. Rutledge’s Committee (Va.) 1 S. E. 202; Elston v. Jasper, 45 Tex. 409; Mohr v. Tulip, 40 Wis. 66.

It appears in this case that in 1917 tbe defendant Clyde Nichols was married by license duly issued ini Carter county and that be was then 31 years of age. Comp. Stat. 1921, see. 7488, provides:

“Marriage is a personal relation arising out of a civil contract to which tbe consent of parties legally competent of contracting and of entering into -if is necessary. * * *”

Section 7492, Id., provides:

“The judge or clerk of the county doruirt of any county in this state, upon) application in writing signed and sworn to in person before him by a person legally competent to mako and fake oath', * * * ®nld being satisfied/ of the truth and sufficiency of such application, and, that there is no legal impediment to such marriage. * * *”

Section 7497, Id., provides: “If the judge ■of the domity count before whom application for a marriage license is made shall be in doubt of tbe legal capacity of tbe parties for whose marriage such license is sought,” he may require evidence ini addition to that clontained i¡n the appillicaftiion, and unless satisfied as to legal capacity the license shall be refused. The county judge in whose court the guardianship of this alleged incompetent was then pending permitted a marriage license to issue. The legal capacity of the parties to the contract thus authorized to he entered into is supported by the strongest presumption known to the law. Plaintiff had a right to safely rely on this legal presumption in loaning money to these intermarried defendants on their promise to repay, the contract being ad-mi.ttedly a fair one. The marriage contract, de facto vacancy in the guardianship, an(d the legal presumption of competency fftoom the issuance of the marriage license, are snflicicnt 'to overcome the absolute verity of the adjudication of incompeteney entered in February, 1919, in the absence of satisfactory proof of actual incompeteney at the time the contract here involved.was entered into.

Note. — See under (1) 32 O. 561 (1926 Anno.). (2) 32 O. 543 (1926 Anno.). (3) 32 0. 502 ; 36 Oye. p. 1146. 00 05 rH ÍO CO fc— l> t-P< ft Á hi hi hi

Section 4983, supra, and sections 7488, 7492, and 7497, supra, relate ¡to the same subject-matter, viz., the legal capacity of parties to contract. Seqtd'on 4983 was in force prior to statehood, while the other section® were enacted daring .the first legislative session after statehood. In Lewis, Sutherland, Statutory Construction, sec. 443, it is said:

“All consistente statutes (which can stand together, though enacted at different dates, relating tea the Same subject, anld hence briefly called statutes in pari materia, are treated prospectively, and construed together as though they constituted one act. This is itlrue, whether the 'acts relutinlg to the same subject were passed at different dates, separated by long or short intervals, at the Same session or on the same day. They are all to be compared, harmonized if possible, and if not susceptible of al construction Which will make all of the provisions harmonize, they are made to operate together so far as possible consistently with the evident intent of the latest enactment.”

It is apparent that a strict construction of the language of section 4983, supra, in this case, would render it in conflict with sections 7488, 7492, and 7497, and would call in, question the validity 'of the marriage contract entered into between 'the principal defendants. By giving to thalt language a liberal interpretation, as authorized by Oomp. Stait. 1921, sec. 3563, in the light of the well-established exception to the general rule of incompeteney, 'all of 'these sections may be harmonized and their language bo given full force and effect. It is therefore concluded that it was the legislative intention by section 4983, supra, to render void the contracts of any person adjudged' incompetent as, long as he should remain under actual guardianship, necessity and convenience alike demanding that the authority of the guardian should he free from conflicting acts of the adjudged incompetent.

Plaintiff having relied upon the presumption of competency inherent in the marriage contract between the defendants, having no actual notice of the pendency of the guardianship proceedings, and having loaned its money fairly and in good faith, relying ort the promise of defendants to repay, the trial court properly held the contract valid. While there was a conflict in the testimony as to the competency of Olyde Nichols at the time the mortgage was executed, the .finding of the trial court that he was then competent is not clearly against the weight of the evidence.

For the reasons herein stated, the decree of the trial court foreclosing plaintiff’s mortgage should be in all things affirmed.

By the Count: It is so ordered.  