Groves v. Ware
| Decision Date | 30 November 1921 |
| Docket Number | 451. |
| Citation | 109 S.E. 568,182 N.C. 553 |
| Parties | GROVES ET AL. v. WARE ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Gaston County; Shaw, Judge.
Action by H. H. Groves and others against J. White Ware and others. From a judgment overruling defendants' demurrer to the complaint, defendants appeal. Affirmed.
The following is a concise statement of the plaintiffs' allegations: L. F. Groves died leaving a last will and testament, in which he named as devisees his widow, Sarah E Groves, and his sons, H. H. Groves, L. C. Groves, E. E Groves, and Forest M. Groves. H. H. Groves and L. C. Groves duly qualified as administrators with the will annexed of the estate of said L. F. Groves, and thereafter entered upon the discharge of their duties as such administrators. Forest M Groves had been, and at that time was, confined in the Westbrook Sanatorium in or near the city of Richmond, in the state of Virginia, which is a private sanatorium for the treatment of insane persons and others suffering from nervous and mental disorder. After said administrators had qualified Dr. James K. Hall, who was in charge of said sanatorium, certified that Forest M. Groves was of insane mind and memory, not capable of managing his financial affairs, and that the said Groves was confined in said sanatorium. Thereafter application was made to the clerk of the superior court of Gaston for the appointment of a guardian for Forest M. Groves, on the ground that said Groves was insane, and the clerk, after notice to said Groves, issued letters of guardianship to E. E. Groves, who took the required oath and qualified as the guardian of said Forest M. Groves. After said E. E. Groves had been appointed guardian, a special proceeding was instituted before the clerk by Sarah E Groves, widow, against H. H. Groves, L. C. Groves, E. E. Groves, and E. E. Groves, as guardian of Forest M. Groves, for the allotment of the widow's dower in the real estate of her deceased husband, and upon report of the jury alloting dower, said report was confirmed by said clerk. Subsequent thereto an ex parte proceeding was instituted by H. H. Groves, L. C. Groves, E. E. Groves, and Forest M. Groves, by his guardian, for the partition of the real estate claimed by said devisees as tenants in common, and upon the report of commissioners appointed for the purpose of making such partition, a decree was entered by said clerk confirming the report of said commissioners, and the land was accordingly partitioned among said tenants. After this partition was made, H. H. Groves and his wife conveyed the land or a part of the land allotted to H. H. Groves to the defendants J. White Ware, J. E. Simpson, and J. A. Estridge, at the purchase price of $26,000, which was secured by a deed of trust. J. E. Simpson paid as a part of the purchase price $8,666.67, and the defendants Ware and Estridge refused to complete their payments on the ground that said land had not been legally partitioned, in that E. E. Groves had not been legally appointed guardian for said Forest M. Groves, and that Forest M. Groves had not been personally served with summons. A petition was filed by E. E. Groves for the purpose of having said Forest M. Groves declared sane, and afterward a jury was summoned to inquire into the sanity of said Forest M. Groves, who after investigation, made report that Forest M. Groves was no longer insane, but was of sound mind and memory, and capable of managing his own affairs. Thereafter on the 8th day of April, 1921, the clerk of the superior court made an order confirming the report of said jury. After this order of the clerk had been made, Forest M. Groves tendered to Sarah E. Groves a quitclaim deed for all his right, title, and interest in and to the land allotted her as dower, reserving his rights as remainderman in the same, and tendered also a quitclaim deed to the defendants Ware, Simpson, and Estridge for the lands conveyed to them by H. H. Groves and wife, and in addition a quitclaim deed to L. C. Groves and E. E. Groves for the land allotted to them. The widow and the tenants in common have tendered quitclaim deeds to each other, mutually releasing to each other the interest which each tenant had in the land allotted to the other tenants. H. H. Groves indorsed to the Groves Mill Company, Inc., of Gastonia, the note executed as evidence of the purchase price of the land sold by him to the defendants Ware, Estridge, and Simpson.
The defendants filed a formal demurrer to the complaint, which is as follows:
"The defendants demur to the complaint herein on the grounds that the same does not state a cause of action, particularly in that the said Forest M. Groves was not legally served with summons nor legally brought into court, and that the proceedings for his restoration to a normal and mental condition are not legal, and that the said H. H. Groves and wife cannot deliver to the defendants Ware, Estridge, and Simpson a good, legal, and indefeasible title to the lands which were conveyed by the said H. H. Groves and wife to the said Ware, Estridge, and Simpson, and that the said H. H. Groves has no legal right to collect the purchase money therefor."
Judge Thomas J. Shaw heard the argument at chambers in the city of Charlotte on November 7, 1921, and rendered judgment overruling the demurrer. The defendants excepted and appealed to the Supreme Court.
J. W. Timberlake, of Gastonia, for appellants Ware, Estridge, and Simpson.
Mangum & Denny, of Gastonia, for appellee.
Clarence M. Austin, of Gastonia, for Forest M. Groves.
The legal propositions upon which the demurrer is based are these: (1) Forest M. Groves was not personally served with summons; (2) the pretended appointment of his guardian is void; (3) C. S. § 2287, is unconstitutional. We shall consider the propositions seriatim.
Section 451 of Consolidated Statutes provides that if any defendant in an action or special proceeding is non compos mentis, he must defend by his general or testamentary guardian, and if he shall have no general or testamentary guardian, and shall have been served with summons, the court may appoint a...
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...right to trial by jury does not apply "where the right and the remedy with it are thereafter created by statute." Groves v. Ware, 182 N.C. 553, 558, 109 S.E. 568, 571 (1921). It is well established that North Carolina juries have been awarding punitive damages since a time prior to the rati......
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