Civil action to set aside three deeds and to place the parties in statuquo ante.
When the case was called for trial, the defendant, Nettie Ball, entered a demurrer ore tenus to the complaint. Whereupon counsel for plaintiff stated that through inadvertence her name had been omitted from the allegations of the complaint, but that she had been served as a party defendant and it was intended that the allegations against her husband should also apply to her, and asked leave of the court so to amend the complaint. It was stipulated that this might be considered as done, and the trial proceeded.
It was further stipulated that all the matters in controversy would be determined by the submission of the following issue to the jury: *Page 330
"Did the plaintiff's ward, James Henry Freeman, have sufficient mental capacity, to wit: on January 23, 1939, to make, execute and deliver the deed to Mae Roberts Freeman, recorded in Book 63, at page 556, of the Madison County Registry?"
It was agreed that if the jury should answer this issue "No," the three deeds in question should be declared void and of no force and effect and canceled of record.
The jury being unable to agree upon a verdict, the parties stipulated, and had it entered of record, that the court might take a poll of the jury and answer the issue in accordance with how the majority stood. A poll was taken and it appearing that eleven jurors were in favor of answering the issue "No," the court so answered the issue.
On the issue, as thus answered, and in accordance with the stipulations of the parties, judgment was entered declaring the deeds in question to be null and void and ordering their cancellation. From this judgment the defendants appeal, assigning errors. The defendant, Nettie Ball, interposed a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against her, which was overruled with the understanding that the allegations against her husband were to be considered as applicable to her. This was tantamount to an amendment curing the defect, and was so understood by the trial court. It is sufficient to defeat a renewal of her demurrer here. The complaint states a cause of action. Cotton Mills v. Mfg.Co., 218 N.C. 560.
The defendants also challenge the sufficiency of the evidence to support the finding of mental incapacity on the part of plaintiff's ward to execute the deed of 23 January, 1939, conveying the property in question to Mae Roberts Freeman. Dr. J. N. Moore, a medical expert, testified that he had known plaintiff's ward for twenty years, "I think he is feebleminded and would not know right from wrong." There was other lay testimony to the same effect; "that he is not capable of transacting business;" that he received no benefit from the transaction, etc. It would seem that this evidence is amply sufficient to warrant the finding under authority of what was said inLamb v. Perry, 169 N.C. 436, 86 S.E. 179.
There is no exception to the manner in which the issue was answered. In an action of this kind, the parties may waive a jury trial and submit the whole controversy to the court for final determination, both as to the law and the facts. McGuinn v. High Point, 217 N.C. 449, 8 S.E.2d 462. *Page 331
The remaining exceptions are not of sufficient moment to call for any discussion. They are not sustained. The validity of the trial will be upheld.
No error.