Devereaux v. Hubbard ( 1898 )

Grant, C. J.

(after stating the facts). 1. Plaintiff’s wife is not before the court complaining of the transaction. It is. obvious that he cannot recover in his own right for any damages she may have suffered in parting with her property. He had no homestead right apart from hers, and cannot maintain a separate action for damages, even if she had been fraudulently induced to sell the homestead. Whether a husband, when his wife owns the title to a homestead, has, by virtue of the marital relation, such an interest as entitles him to damages when she has by fraud been induced to part with it, — quaere. But, if he has, both must join in the suit to recover the damages. It would seem that the sole remedy ought to be in the one who owns the title. In any event, the law does not tolerate a suit by each. Under plaintiff’s own theory his wife was a necessary party.

2. The proposition that a husband is entitled to damages because, through his “impaired mental condition,” he was “induced and persuaded to cause and procure his wife to trade and sell her land for certain other lands,” does not merit discussion. She alone is interested in such a transaction, and entitled to damages on account of any fraud.

3. Plaintiff had not been adjudged incompetent at the time of this transaction, nor has he yet, for this suit is brought in his own name. The declaration does not allege any fraudulent representations. It does not allege such incompetency as is recognized by the statute of this -State as a cause for the appointment of a guardian. The ■statute requires that he should be “mentally incompetent to have the charge and management of his property.” 2 How. Stat. § 6314. The allegation in the declaration is that plaintiff was “ mentally incapable of reasonably and properly managing and conducting his own business affairs.” Many men lack business ability, judgment, and discernment, but their contracts cannot, for that reason, be set aside. In order to avoid a deed, the party must show that the grantor had not sufficient capacity to understand the nature and consequences of his own act. Jones,, Real Prop. § 48. Were plaintiff before a court of chancery, seeking to set his deed aside, and offering to place the defendants in statu quo, relief would not be granted him by showing that he was “mentally incapable of reasonably and properly managing and conducting his business affairs.” When he seeks in a court of law to ratify his deed and contract, keep what he has, and have a court or jury decide how much more he ought to have had, he must hoth allege and show, in the absence of fraudulent representations, that his mental incompetency was such as would avoid a deed. No such degree of incompetency is alleged.

The judgment is affirmed.

The other Justices concurred,