
    Fred Bokemper, Appellant, v. John T. Hazen, Sheriff.
    Law of the Case. Where it is instructed that a sale by an insane person is valid if made upon a present consideration, a verdict setting the sale aside should not be allowed to stand where it is clear that a present consideration passed.
    Deemer, J., took no part.
    
      Appeal from Pottawattamie District Court. — Hon. H. E. Deemer, Judge.
    Thursday, October 24, 1895.
    Action of replevin. Trial to a jury. Verdict for defendant. Plaintiff appeals.
    
    Reversed.
    
      
      John Lindt for appellant.
    
      Emmett Tinley for appellee.
   Kinne, J.

I. Action to recover certain personal property which had been levied upon, by defendant as sheriff in a cause wherein Joton, Maloney was plaintiff and William Madden defendant. Plaintiff claims to own the property by virtue of having purchased the same from one John Linder, who claims to have purchased' it from William Madden. Defendant in this action answered, denying the purchase of plaintiff, and of his alleged grantor Linder, and says that at the time of the execution of the bill of sale by Madden to Linder, Madden was insane, and incapable of contracting, and that Linder knew of Madden’s mental condition, and fraudulently took advantage of it; that the consideration of the bill of sale was an agreement to cancel an antecedent indebtedness, claimed by Linder against Madden; and that no consideration passed from Linder to Madden when the bill of sale was executed. To this answer plaintiff replied, • denying its averments.

II. Counsel for appellants, say that the only questions presented for our consideration are: First, is the bill of sale from Madden to Linder void on account of Madden’s insanity? And, second, was there any present consideration for the execution, of said bill of sale? As the jury found for the defendant, it is evident that they found that Madden’s alleged insanity, at the time he executed the bill of sale, had been established, and that there was no present consideration for the execution of that instrument. Without entering into' a detailed consideration of the testimony, we may say that it is such that the jury could well have found that Madden was mentally incompetent to execute the bill of sale. We cannot disturb their finding in that respect. The real question is as, to- whether the consideration of the bill of sale was a pna-iexisting indebtedness, or whether Linder, on the faith of it, paid out money for Madden pursuant to a promise made to do so at the time the bill of sale was executed. The court instructed the jury, touching this matter, as follows: “If Linder took the bill' of sale as security for or in payment of ,an indebtedness, due him from Madden, which had been created prior to the time of making of the bill of sale, and advanced or parted with nothing on the strength thereof, then the parties are in position so that they can, be placed as they were at the time the bill of sale was made. But if Linder, on the strength of the bill of sale, paid out any money for Madden, either on a note upon which he was a surety for Madden, pursuant to a promise made to, do so at the time the bill of sale was made or agreed to, and did pay the rent of a building which Madden was obliged to pay, then there was a consideration for the bill of sale which will support and sustain it,.” In another instruction, the jury were told, in substance, that if they found that Madden was insane at the time the bill of sale was made, and that plaintiff and Linder both knew of his mental condition at that time, still, if there wais a present consideration for the bill of sale, and Linder could not be placed in the condition he was before the bill of sale was executed, then they should find for plaintiff. These and other instructions not now objected to, constituted the law of the case which the jury were bound1 to follow. It becomes material, them, to, determine whether the testimony was such as to warrant a finding that there was no consideration for the bill of sale a,greed upon at the time it was executed, and which was in fact paid by Linder. There is no question that Linder paid the two hundred dollar note for Madden, and that he paid a small sum to- one Sweet for Madden; also, a considerable sum for rent due. The only controversy is as to whetheir these payments were made in pursuance of any agreement or arrangement entered into between them at the time the bill of sale was executed. From a careful consideration of all the testimony, it seems to us clear that the sums paid by Linder were paid in pursuance of the arrangement by which the bill of «ale was made; that the consideration for the bill of sale was not the security of a pre-existing debt, but an absolute agreement on Linder’s part to pay certain specified debts of Madden, which agreement Linder earned out in good faith. Under such circumstances, the jury were not justified in finding, as they must have found, that the bill of sal© was given to secure a pre-existing indebtedness. Under1 the evidence and the instructions of the court, the verdict should have been for the plaintiff. —Reversed.

Deemer, J., took no part  