#### Campbells v. Bowen’s Adm’rs *&*Another.

August, 1842,

Lewisburg.

(Absent Cabell, P., and Bbooke, J.)

Insanity*—Institution of Enquiry—Guardian ad Litem —Practice.—in a suit in equity to foreclose a mortgage, after tbe defendant bas answered, an account been taken before a commissioner, and a decree of foreclosure made, tbe sons of tbe defendant file a petition, suggesting that tbe defendant is, and was at tbe time of tbe mortgage, a lunatic; and they exbibit some affidavits in support of tbe suggestion. The circuit court thereupon appoints tbe petitioners guardians ad litem to tbe defendant, suspends tbe decree of foreclosure, and (the petition being traversed! directs an issue to try the validity of tbe mortgage. Afterwards, considering it improper that there should be an enquiry as to the validity of tbe mortgage until tbe fact of lunacy at the time of tbe suggestion is first established, tbe court sets aside tbe order directing tbe issue, leaves those interested to furnish proof of the fact of lunacy by procuring tbe appointment of a committee by tbe county court, and declares that if this be not done in a reasonable time, it will rescind the order suspending the decree. The court waits 18 months, and then (no such step having been taken) allows the decree of foreclosure to operate, and orders *the parties who filed the petition to pay the costs incurred in consequence thereof. Whereupon those parties, as well as the original defendant, appeal. Held, 1. that on the petition and the traverse thereof, the circuit court should have instituted an enquiry as to the state of the defendant’s mind at that time, and ascertained whether it was such as to require for him the protection of a guardian ad litem. 2. That the court erred, when, without making this enquiry, it appointed guardians ad litem, and directed an issue to ascertain whether the defendant was of unsound mind when he made tbe mortgage. 3. That the order directing the issue was properly set aside, to correct the error in making it. 4. That, for the purpose of ascertaining whether there was such incapacity as made it proper to appoint a guardian ad litem, tbe court might have taken such a course as is resorted to in England in like cases; that is to say, it might have referred the matter to a master, for him to report, on a personal examination of tbe party, aided (if need were) on such examination, by physicians. 5. (Allen, J., dissenting,) That, under tbe circumstances of the case, the appellate court ought to consider that which was done in the circuit court, as equivalent to an enquiry before the master, and a report by him against the suggestion. And 6. that as the parties who filed the petition were not interested as parties in the original suit, and can only claim to be injured by the decree for costs, the appellate court must dismiss the appeal from such decree for costs, as a matter of which it has not jurisdiction.

On the first of June 1829, Rebecca Bowen administratrix and William Gillespie administrator of Rees Bowen deceased, and John Crockett, filed a bill in the superior court of chancery holden - at Wythe courthouse, against William Campbell, to foreclose a mortgage theretofore (to wit, on the 4th of November 1823) executed by Campbell to Rees Bowen and John Crockett, to secure debts arising out of contracts made in 1821, 1822 and 1823.

At May term 1830, Campbell filed his answer. The answer was duly sworn to before a justice of the peace, and was very full in its statements and views. It furnished strong evidence on its face that it was prepared by counsel; and indeed the record shewed that counsel appeared for the defendant and filed it.

*After the establishment of circuit superior courts, the cause was removed to the circuit court of Washington county.

The accounts between the parties being referred to a commissioner, and a report returned, the court, on the 19th of May 1834, decr.eed that unless payment should be made, on or before the first day of the succeeding term, of the sums ascertained to be due, the mortgagor should be barred and foreclosed of his equity of redemption, and the mortgaged lands sold by a commissioner appointed for the purpose, in the manner and upon the terms mentioned in the decree.

At the next term, to wit, on the 20th of October 1834,, Alexander H. Campbell and George W. Campbell sons of William Campbell, filed a petition, representing that their father had for more than twenty years been labouring under mental derangement; that this was notorious, and was known, at the time the mortgage was taken, to the agent who obtained it for the mortgagees, and to the mortgagees also *;*that at the time of the mortgage, as well as before and since, he was incompetent to make a contract, or sanction one, which would be binding on him, either in law or equity ; that the contract was moreover an unconscionable one, and upon the least taint of fraud, ought to be dissolved by a court of equity ; that even if their father be held to the contract, great injustice has been done him in ascertaining the amount due. The petitioners expressed their belief, that, from the mental incapacity of their father, much had been omitted in his defence, which by proper attention could be shewn, and which would materially change the aspect of the case. And the *145prayer of the petition was, that the decree might be set aside; that a guardian or committee be appointed to represent the interest of the defendant, with permission to answer the bill ; that an enquiry might be instituted in regard *to his mental capacity, and such relief afforded as justice and law required.

The petition was sworn to by George *W.*Campbell, before a justice of the peace; and the petitioners, in support of their petition, relied upon various contracts entered into by Campbell at different times before the mortgage (which contracts formed the basis of the mortgage, and had been filed with the bill and answer), and also relied upon the following affidavits of other persons ; to wit—

Of John T. Campbell ; that at least three times in the course of 8 or 10 years, he had seen William Campbell in a perfect state of derangement.

Of Jeremiah Ayres ; that since 1819, he had been acquainted with Campbell, and during that time never thought he was capable of doing business, and frequently knew him to be in a state of derangement.

Of Charles Tate ; that he had been acquainted with Campbell for upwards of 20 years, and for the last 15 years had regarded him as of unsound mind, and incompetent to the transaction of business of importance ; that the affiant believed his state of mind to be such at this time, that he was no way capable of given to any business proper attention.

Of Edward Eulton ; that he had been acquainted with Campbell since 1831, and had seen him, at periods during that time, mentally disqualified safely to transact any sort of business.

Of Erancis Smith ; that he had been acquainted with Campbell upwards Of 30 years ; that for 20 years or upwards, he had thought Campbell’s mind unsound,—much more so at some times than at others; that though capable generally of managing common business, he was inadequate to what was material and intricate.

Of Richard Roberts ; that he had been acquainted with Campbell for more than 20 years, and from his peculiar ^actions on some occasions, concluded that he was in a state of derangement.

Of Theodore G. Pearson ; that he had been acquainted with Campbell for 12 years, and once or twice in the course of that time had seen him when the affiant thought his mind was impaired. On one occasion, when the affiant saw him and spoke to him, he would not speak, and from external appearances the affiant thought that his mind was certainly very much disordered.

Upon this petition, thus supported, the court made an order suspending the execution of the decree ; appointing Alexander H. Campbell and George W. Campbell guardians ad litem of the defendant ; and giving leave to the complainants to traverse the suggestions in the petition.

At May term 1835, it was entered of record that the complainants traversed and denied the petition, and all the allegations thereof ; and thereupon the court ordered that issues be made up, to be tried at its bar, to ascertain, first, whether Campbell, at the time of making the several contracts before mentioned, was of unsound mind, and in consequence thereof incapacitated to make the said contracts; and secondly, whether, at the time of executing the mortgage, he was of unsound mind, and incapacitated thereby to execute the same.

At October term 1835, the cause was continued.

At May term 1836, on motion of the complainants, it was ordered that the issues be so changed, as that it should first be ascertained by the verdict of the jury, whether, at the time of executing the mortgage, Campbell was of unsound mind, and thereby incapacitated to execute the same ; and if so, secondly, whether at the time of making the several other contracts before mentioned, Campbell was of unsound mind, and thereby incapacitated to make the same. During the same term, a jury was impanelled to try the issues ; but, after bearing the evidence, the jurors were unable to agree upon a verdict, and were discharged.

*At May term 1837, for reasons appearing to the court, the issues' were ordered to be tried at the bar of the circuit court of Scott county. A trial was had in that court in Septémber 1837, which again resulted in the failure of the jury to agree.

At October term 1837, a motion was made by the complainants to set aside the issues made up on the petition, to dismiss the said petition at the costs of the petitioners, and to rescind the order suspending the decree of foreclosure. On consideration thereof, the court decreed that the issues be set aside and the petition dismissed. It made no decision at that time upon the question of costs, but held the same for advisement and refused at that time to rescind the order suspending the decree, for reasons set forth in a written opinion.

“It seems,” says the judge in this opinion, “that the chancellor has no power 'to appoint a committee for a lunatic. This power was exercised in England by commission from the king, which, though usually directed to the chancellor, might be directed to any body ; and it was in virtue of the commission that the chancellor acted, and not virtute officii. The king, by virtue of his office, having the care and custody of all such persons, and not being able to exercise the office in person, delegated it to another, who, by virtue of such delegation, thus exercised a personal trust. But the courts of chancery, as such, have power to appoint guardians ad litem to defend the interest of persons disabled in law or fact from defending themselves, and the only question seems to be whether the guardians were regularly appointed.” After remarking upbn the nature of the petition and proofs, the judge thus proceeds: “It seems to the court that it was wrong, upon these suggestions and proofs, to have made the appointment; which the court regrets, on account of the *146expense to which the parties have been thereby subjected : and it is now questionable whether the proper mode to have this subject investigated is by a committee appointed by the county court, (to whom, and to magistrates, the legislature seems alone to have confided the power over this subject usually exercised in England under a commission from the king) which committee may file a bill asking a suspension of the decree, or that the court should have an investigation before a jury ordered by it, and if the defendant is found now of unsound mind, appoint guardians ad litem to defend this suit for him. One or the other of these modes ought to have been pursued, and the first seems most proper, not only as the mode pointed out by statute, but as presenting parties liable for costs in such expensive litigation, to be paid out of the lunatic’s estate. As the courts of chancery are vested with power, in all analogous cases, to appoint guardians ad litem for all persons disabled or incompetent from infancy &c. to defend their own interests, the power might be exercised in a proper case in relation to a lunatic. But it certainly ought not to be exercised upon mere suggestion.” After some farther remarks upon the former proceeding, the judge continued as follows: “The court now thinks the proceeding wrong, and must set aside the issues as improvidently ordered. But the court has seen enough in the proceedings to induce the belief that some investigation of the sort may be proper; and were the court now to rescind the order suspending the decree of foreclosure, it would operate a surprise upon the defendants: and although the court would not suspend its decree for an indefinite length of time, merely to see whether any body would place himself in condition properly to have the matter of the issues investigated, yet it thinks a suspension till the next term but reasonable; when, if no steps shall have been taken by persons interested to oppose the decree of foreclosure, the suspending order will be rescinded, and the decree allowed to operate.”

The cause was continued at May term 1838, and was again continued at October term 1838.

*At May term 1839, the case was again examined by the judge, and on this occasion he adverted to the first proceeding on the petition, in the following terms : “The error in that proceeding seems to be this, that on the suggestion of the petitioners, and affidavits offered by them, the court took for granted a fact which ought to have been shewn in another manner, viz. that the defendant was at that time a lunatic, and incompetent to manage his case or to be impleaded therein. From the proofs made on the trial of those issues, the court might, if it had power, direct that matter to be enquired into ; but believing it possessed no such power, the court left it to defendant’s counsel, and to his sons, or any other feeling interest in the matter, to provide the proper means for investigating that subject, through the action of the county court or otherwise, and afforded them ample time to do so. It has not been done, though a proceeding was instituted in the county court of Smyth (defendant’s residence) and afterwards abandoned, so that the defendant stands before me in a situation no way different from other defendants, and the court is called upon to decide the cause upon the papers before it, freed from other considerations than those afforded by the pleadings and testimony in the cause.”

Thereupon the court, rescinding the order which suspended the former decree of foreclosure, made another decree of foreclosure, and ordered the petitioners to pay the complainants their costs expended about the defence of the petition, and upon the issues.

From the said decree and proceedings, an appeal was allowed on the petition of William Campbell, Alexander H.Campbell and George W. Campbell.

The cause was argued by Preston and B. R. Johnston for the appellants, and by Eeftwich for the appellees.

The argument was full, upon the merits as well as upon the questions growing out of the petition suggesting the fact of lunacy.

*the course of the argument the following authorities were referred to, to shew the power of the chancellor in England, and the power and duty of the circuit court, upon such suggestion: 4 Bac. Abr. title Idiots and Bunatics; C. G. Ex parte Barnsley, 3 Atk. 168; Oxenden v. Bord Compton, 2 Ves. jun. 71; Ex parte Ward, 6 Ves. 579; Sherwood v. Sanderson, 19 Ves. 280; 2 Madd. Ch. Pract. 739; Wilson v. Grace, 14 Ves. 172; Howlett v. Wilbraham, 5 Madd. Ch. Rep. *423;*Sackville v. Ayleworth, 1 Vern. 106; Mitf. 29, 94, 5; 1 Newland’s Ch. Pract. p. 146 of Lond. edi. of 1830; 1 Smith’s Ch. Pract. 124, 186; Grant’s Ch. Pract. *594;*2 Fowler’s Excheq. Pract. 422; Shelford on Lunacy 445; Story’s Eq. Plead. 67; 1 R. C. 1819, p. 413, § 3, 6; Id. p. 415, § 9; Id. p. 417, § 22; Id. p. 212, § 73; Bolling v. Turner, 6 Rand. 584; Hall v. Warren, 9 Ves. 605.

Beftwich also referred to the following authorities, to shew that no appeal would lie for the petitioners from the decree against them for the costs incurred in consequence of the petition: Cook v. Piles, 2 Munf. 152; Garnett v. Childers, Id. 277; Henry’s ex’or v. Elcan, Id. 541; Ashby v. Kiger, 3 Rand. 165; 1 R. C. 1819, p. 206, § 51.

*

See monographic *note*on “Insanity” appended to Boswell v. Com., 20 Gratt. 860.

STANARD, J.

The first enquiry in this case is, whether it was brought on prematurely, before the court below had, by the appointment of a guardian ad litem to the defendant Campbell (alleged to be under the disability of lunacy), provided for a proper defence of an incompetent defendant, or at least instituted suitable proceedings to ascertain the fact on which the necessity of such an appointment depended.

The suggestion of the disability of lunacy was not made until the lapse of years after the institution of the suit, and after a defence ostensibly full, and a decree. It was then made on an affidavit of parties, who *147petitioned for the appointment of a guard ian ad litem, supported by other ex parte affidavits. The affidavit *speaks of the general incompetency of the defendant for a period of more than twenty years, and the supporting affidavits speak generally of a fluctuating capacity during that time, which rendered him incompetent “to give proper attention to any business or as, “at periods, mentally disqualifying him safely to transact any sort of business or as rendering him, though “capable generally of managing common business,” yet “inadequate to what was material and intricate or as betraying, “by his peculiar actions on some occasions, that he was in a state of derangementor as having been seen, when, from his silence, and “from external indications, the affiant thought his mind certainly disordered.” The affidavit of the petitioners seems to point more to the incapacity at the time of the contract, and to the consequent invalidity of the contract, than to its influence on the measures of defence in the suit; for in respect to that, there is only a general declaration of their belief that in consequence of the mental incapacity of the defendant, “much has been omitted in his defence, which by proper attention could be shewn,” without the specification of any omission ; and the supporting affidavits do not apply specially, nor are they directed, to the mental capacity at the time of preparing and filing the answer, or at the time of any other proceeding of the defendant in defence of the suit.

Nothing is more certain than that, on such a suggestion, the only proper subject of enquiry for the court was the then capacity or incapacity of the defendant to superintend his defence. If he was labouring under mental disability in the decree to require the superintendence of a guardian ad litem, that protection should have been given him. If he was not, the court had no power to supersede his free will and put him in wardship, and through such agency, to obtrude on him a defence on the ground of incapacity at the time the contract *was made ; a defence which, on the supposition of existing capacity, he did not think proper to urge for himself, and which he by implication disavowed. If the allegations of the petition of existing incapacity had been admitted, the court might and ought to have appointed a guardian ad litem, and (the guardian being thus introduced into the case) it would depend on what he might suggest and shew to the court, whether or not he would be permitted, on behalf of the defendant, to change the defence, by adding to it the objection to the validity of the contract on the ground of incapacity at the time it was made. He would probably not be allowed to make such change, without suggesting and shewing that the defendant laboured under the alleged incapacity at the time he made his defence. But though the allegations of the petition were immediately traversed, the court, without making the only enquiry proper to be made on the petition, that is, to ascertain the then state of the defendant’s capacity, passed by that enquiry, appointed the petitioners guardians ad litem, and directed an issue to ascertain whether the defendant was of unsound mind at the time he made the contracts and mortgage in the bill mentioned, and thereby incapacitated to make the contracts and execute the mortgage. All this was certainly most irregular. This issue was improperly directed, and the abortive attempts to get a verdict on it may be passed over without further notice. The order directing it was properly set aside, to correct the admitted error in making it, and under the well founded conviction that the preliminary question was, whether the then state of the defendant’s mind was such as to require f-r him, at the hands of the court, the protection of a guardian ad litem. The judge thought he had no right to enquire into the insanity of the defendant; that the statute had prescribed the manner of making such enquiry, and the organs to make it; and that the appointment of a guardian *ad litem could not regularly be made, but asa consequence of such enquiry, and in the person of the committee that such enquiry might provide for the lunatic.

The argument of the appellant’s counsel, and the authorities vouched in support of it, have, I think, most successfully shewn that the judge of the court below mistook the extent of his powers, and erroneously thought them more limited than they were. He may not have the power that the lord chancellor in, England, as the delegate of the crown, possesses—that of issuing a commission of lunacy, nor of appointing a committee. His power in this respect need not here be enquired into or adjudicated. If a defendant in a suit in equity be lunatic, the court in which the suit may be pe > ding has power to appoint a guardian ad litem, not only as a part of its general jurisdiction, but by express authority of the statute, 1 R. C. 212. And the authorities before referred to also ascertain, that if a party lunatic have not a committee, he should have a guardian ad litem appointed to superintend and protect his interests; that such protection is extended even to those who, from age and imbecility, are shewn to need it; and that the interposition of such protection is a matter of sound discretion of the court. When, however, the fact of lunacy or incapacity is contested, the rightful exercise of the power to appoint a guardian ad litem depends on the previous ascertainment of the fact, and the power to enquire into it is incident to that which is to be exercised on the ascertainment of it. In England, there is no statutory provision for a summary and compendious enquiry into the fact of lunacy. The enquiry there, with a view to the appointment of a committee to be charged with the care of the lunatic and his estate, is by commission from the chancellor, acting as the delegate of the crown ; and where it is suggested that a party defendant in equity, who has not been found lunatic under a commission, is a lunatic, and the enquiry *is made for the purpose of deciding whether or no the court should *148provide for this incapacity by appointing a guardian ad litem, that enquiry is referred to a master for his report on a personal examination of the party, the master being aided (if need be) in such examination, by physicians. Shelford on Lunacy 445 1 Smith’s Ch. Pract. 186. Such enquiry is instituted under the sound discretion of the court; and sometimes, instead of appointing a guardian ad litem to act for the incapable defendant, that duty is directed to be performed by the clerk in court. In the case under consideration, such a course might have been taken, though the judge below thought he had no power to resort to it. So thinking, he (instead thereof) suspended the decree for 18 months, avowedly for the purpose of affording the defendant, and those who assumed the superintendence of his interests, an opportunity to resort to that summary enquiry which the statute here (but not in England) allows, to ascertain the existence of the suggested incapacity. The resulting question then is, ought this, under the circumstances of this case, to be regarded in the appellate court as an equivalent for the enquiry before a master, which the court in its sound decretion might have directed ?

The suggestion of incapacity was made under circumstances calculated to excite distrust and suspicion. The suit was instituted in 1829, to foreclose a mortgage executed in 1823 ; and the existing debts secured by the mortgage had been contracted in 1821 and 1822: and the first decree of foreclosure was rendered in May 1834, after a defence ostensibly full and active. Prom the time of the first contract in 1821 to the decree in May 1834, the defendant continued in the uncontrolled management of his property, and unrestrained enjoyment of his liberty, as a person of sound mind ; and not an intimation is made in the progress of the suit, until after the decree, that he laboured under any incapacity Requiring a guardian ad litem to conduct his defence: and during the time that elapsed from 1834 to 1837 in the abortive attempts to get a verdict on the issue that was erroneously directed, he still continued unrestrained in his personal liberty and the management of his property. If counsel prepared his answer, the proper evidence of his incapacity then would be that counsel, and yet no such evidence is offered; and if it was prepared by himself, it furnishes most persuasive if not conclusive proof of the presence of capacity. The opportunity afforded by the suspension of the decree, for enquiry into the capacity of the defendant by a personal examination, if used (as the opinion of the court below states that it was) resulted in as satisfactory a refutation of the suggestion of existing incapacity, as would have been furnished by a report of a master ; and if not used, the failure to use it is inferential proof, almost as cogent as direct, that it could not be successfully used. Under the circumstances of the case, I think the appellate court ought to consider that which was done in the court below, a full equivalent for an enquiry before a master, resulting in a negation of the suggestion ; and thereafter the court below soundly exercised its discretion, in proceeding with the case as one in which the defence had been, and would continue to be, made by a competent defendant.

On the merits, I think the decree is right. (The judge proceeded to give his view of the evidence, and of the operation of the contracts, and then concluded as follows :)

It is not necessary to enquire whether the court ought to have given costs against the petitioners, on the dismission of their petition. They had no rights in the matters in controversy in the original suit. They were not interested as parties, and could claim no decree therein. The utmost injury they can sustain by the decree, is the amount of costs decreed against them; *and for the correction of this error, if it be one, this court has not jurisdiction.

On the whole, I think the decree in the original suit ought to be affirmed, and the appeal of Alexander H. Campbell and George W. Campbell, from the decree for costs on the dismission of their petition, dismissed, as not within the jurisdiction of this court.

BALDWIN, J.,

concurring, the decree was entered accordingly.

ALLEN, J.,

said, he would have concurred with the majority of the court on the merits, if he had considered it proper, at this time, to make a decision upon the merits. He was of opihion that it was competent for the circuit court, upon the suggestion of the insanity of the defendant, verified by the affidavits and other circumstances of the cause, to have enquired into the fact; that if such enquiry resulted in satisfying the court that the defendant was insane when he filed his answer, and so continued, the court had the power, and it was its duty, to appoint a guardian ad litem, and give him leave to file an answer ; that as, by the pleadings, the competency of the defendant to contract at the time the contracts and mortgage were executed had not been put in issue, the order directing issues to enquire into that fact was premature and irregular; but that, upon the proofs in the cause, the court should have suspended proceedings until it had ascertained, by an issue or otherwise, whether the defendant, at that time, and when he filed his answer, was insane or not. It therefore seemed to him that the decree of the circuit court ought to be reversed, and the cause remanded for the proper enquiry to be made.