The appellees, Catherine and Robert W. Nolloth, brought an action for specific performance of a contract by which the appellants, A. Vitali and wife, had agreed to purchase a certain tract of land from the Nolloths. The Vitalis defended on the ground that the Nolloths did not have a marketable fee simple title. The court found that the Nolloths had good title, and decreed specific performance. On this appeal by the Vitalis, a question is raised as to only one transaction in the chain of title of the Nolloths.
The Nolloths purchased the land in 1951 from one Catherine Garaghty, who had acquired the land in 1948 by a commissioner's deed in proceedings brought by the committee of Jennie P. Hornaday and Georgia Hornaday, under Section 489 of the Civil Code (now KRS 389.010), for a sale of the land. The committee had been appointed by the circuit court of Kenton County in 1943, pursuant to the judgment in a sanity inquest held in that court.
The parties agree that the controlling question is whether, by reason of the form of the verdict and judgment in the sanity inquest, the judgment in the inquest was void and the appointment of the committee therefore was void also. There is some contention that the sale proceedings brought by the committee in 1948 were effective to pass good title to Catherine Garaghty, as a bona fide purchaser who was not a party to the proceedings, regardless of any invalidity of the inquest judgment, because the two alleged incompetents were served with process in the 1948 proceedings and were represented by a guardian ad litem. However, we find it unnecessary to pass on that question.
Under KRS 387.220, a committee cannot be appointed for an alleged incompetent unless he has been found, by judgment of the circuit or county court upon the inquest of a jury, to be a person of unsound mind. KRS 387.010 places several categories of persons within the definition of a "person of unsound mind', but in every category the element of mental incompetence is a requisite.
The verdict in the Hornaday inquest of 1943 was as follows:
"We, the jury, find, while we do not consider Mrs. Hornaday and Georgia Hornaday insane, we do feel that they are not capable of looking after their affairs and ask the court to appoint a committee to take charge of their estate; * * *.'
The judgment on the inquest was:
"Therefore: It is considered, ordered and adjudged that the defendants, Jennie P. Hornaday and Georgia Hornaday and each of them is incompetent to manage her estate, * * *'
It will be noticed that neither the verdict nor the judgment expressly finds the Hornadays to be of unsound mind.
In Coffield v. Salem Bank, 297 Ky. 635, 180 S.W.2d 855, 856, a jury upon an inquest in the circuit court had returned a verdict that one R. R. Coffield was "incompetent to manage his estate by reason of physical infirmities". The judgment upon the inquest was "that said R. R. Coffield is incompetent to manage his estate and that a committee be appointed". Subsequently, R. R. Coffield attempted to bring an action against a bank, in his own name, and the defense was made that Coffield had no legal capacity to sue. In upholding that defense this Court said, 180 S.W.2d 856:
"There is no doubt as to the insufficiency of the verdict of incompetency to support the judgment rendered thereon. To warrant the appointment of a committee there must be a finding by the jury that incompetency is due to mental unsoundness -- incompetency due to physical infirmities is not sufficient. Downing v. Siddens, 247 Ky. 311, 57 S.W.2d 1.
"It does not follow, however, that the judgment of incompetency was void. It was only erroneous, since the court which rendered it had jurisdiction of Mr. Coffield's person and jurisdiction to render that character of judgment. A judgment is distinct from the verdict and, though it departs from the verdict pursuant to which it purports to be rendered, it is only erroneous and not void. * * *'
Prior to the Coffield case, in Higdon v. Commonwealth, 257 Ky. 69, 77 S.W.2d 400, ...