#### JAMES HENRY FREEMAN v. PEARSON BALL et al.

(Filed 19 March, 1941.)

1. Pleadings § 22 — Order oí court held tantamount to amendment curing defect in complaint.

Upon the call of this case for trial, the *feme*defendant demurred. Whereupon counsel for plaintiff stated that through inadvertence her name had been omitted from the allegations of the complaint, but that the allegations against the male defendant were intended to apply to her also, and asked leave to so amend. It was stipulated that this might be considered as done, and the trial proceeded. *Sold:*The procedure was tantamount to an amendment curing the defect, and the *feme*defendant’s demurrer in the Supreme Court is overruled.

2. Deeds § 2a — Evidence of mental incapacity of grantor held sufficient.

Testimony of a medical expert that he had known the grantor for 20 years and that in the witness’ opinion the grantor is feebleminded and would not know right from wrong, together with lay testimony to the effect that the grantor is not capable of transacting business, with evidence that the grantor received no benefit from the transaction, *is held*sufficient to support judgment setting aside the deed for mental incapacity of the grantor.

3. Trial §§ 43, 52 — Parties may agree that court enter verdict in accordance with how majority of jurors stand.

Since a civil action to set aside deeds for undue influence and mental incapacity of the grantor may be submitted by agreement of the parties to the court and a jury trial waived, a stipulation of the parties, upon the jury being unable to agree upon a verdict, that the court might take a poll of the jury and answer the issue in accordance with how the majority stood, will sustain the judgment of the court upon a verdict arrived at in accordance with the stipulation.

Appeal by defendants from *Armstrong, J.,*at October Term, 1940, of MADISON.

Civil action to set aside three deeds and to place the parties *in statu quo 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:

*330“Did the plaintiff’s ward, James Henry Freeman, have sufficient mental capacity, to wit: on January 23, 1939, to make, execute and deliver tbe deed to Mae Roberts Freeman, recorded in Book 63, at page 556, of tbe Madison County Registry?”

It was agreed that if tbe jury should answer tbis issue “No,” tbe three deeds in question should be declared void and of no force and effect and canceled of record.

Tbe jury being unable to agree upon a verdict, tbe parties stipulated, and bad it entered of record, that tbe court might take a poll of tbe jury and answer tbe issue in accordance with bow tbe majority stood. A poll was taken and it appearing that eleven jurors were in favor of answering tbe issue “No,” tbe court so answered tbe issue.

On tbe issue, as thus answered, and in accordance with tbe stipulations of tbe parties, judgment was entered declaring tbe deeds in question to be null and *void*and oz-dering their cancellation. From tbis judgment tbe defendants appeal, assigning errors.

*Roberts <& Baley for plaintiff, appellee.*

*Calvin R. Edney and Ellis C. Jones for defendants, appellants.*

Stacy, O. J.

Tbe defendant, Nettie Ball, interposed a demurrer to tbe complaint on tbe ground that it did not state facts sufficient to constitute a cause of action against bei-, which was overruled with tbe understanding that tbe allegations against her husband were to be considered as applicable to her. Tbis was tantamount to an amendment curing t-be defect, and was so understood by tbe trial court. It is sufficient to defeat a renewal of her demurrer here. Tbe complaint states a cause of actiozz. *Cotton Mills v. Mfg. Co.,*218 N. C., 560.

Tbe defendants also challenge *the*sufficiency of tbe evidence to support tbe finding of mental incapacity on tbe part of plaintiff’s ward to execute tbe deed of 23 January, 1939, conveying tbe property in question to Mae Roberts Freeman. Dr. J. N. Moore, a medical expert, testified that be bad known plaintiff’s ward for twenty years, “I think he is feeble-minded and would not know right from wrong.” There was other lay testimony to tbe same effect; “that he is not capable of transacting business;” that he received no benefit from tbe transaction, etc. It would seem that this evidence is amply sufficient to warrant tbe finding uizder authority of what was said in *Lamb v. Perry,*169 N. C., 436, 86 S. E., 179.

There is no exception to the manner in which tbe issue was answered. In an action of this kind, the parties may waive a jury trial and submit the whole controversy to tbe 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.

*331The 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.