Tbe defendants during tbe pendency of tbe action filed three Answers. They assign as error No. One, Judge Clarkson, upon motion of tbe plaintiff, “striking out parts of defendant’s answer.” However, they bring forward and discuss in their brief only tbe striking out of all allegations to tbe effect that H. R. Green could not execute a valid assignment of tbe lease and option to tbe plaintiff, because at tbe time of its execution and delivery be was mentally incompetent. After Judge Clarkson’s order, tbe defendants filed a second Answer making substantially tbe same allegations. Judge Moore, upon motion of tbe plaintiff, struck out of defendants’ answer substantially tbe same allegations that Judge Clarkson did. Defendants assign as error No. Two> Judge Moore “striking out parts of defendants’ answer.” However, they bring forward and discuss in their brief only the striking out of tbe allegations as to H. R. Green’s mental incompetency. Defendants discuss these two assignments of error together in their brief.
Defendants then filed a Third Answer in which was alleged a substantial part of tbe matters and things stricken out by Judges Clarkson and Moore, other than tbe allegations as to mental incompetency of Green.
Tbe defendants contend that they can avoid Green’s assignment of tbe lease and option to plaintiff upon the alleged ground of Green’s mental incompetency at tbe time of its execution and delivery.
Tbe executed contracts of an insane person “before such condition has been formally ascertained and declared, are voidable and not void, and it is also recognized that such contracts are usually voidable at tbe election of tbe lunatic or person properly appointed to act in bis behalf . . .”
Ipock v. R. R.,
It was held in
Cadillac-Pontiac Co. v. Norburn,
H. R. Green is dead. Tbe fact that bis heirs, executor or administrator might have a valid cause of action against tbe assignee because of Green’s alleged mental incompetency does not affect tbe legal title of tbe plaintiff,
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and is not available as a defense for the defendants in this action on the assignment of the option.
Kelly v. Kelly,
If any part of the allegations in their first and second answers stricken out, other than those referring to Green’s mental ineompetency, are not substantially alleged in their Third Answer, the defendants would seem to have abandoned their general exceptions thereto by not discussing them in their brief. Rule 28, Rules of Practice in Supreme Court,
Defendants’ assignments of error Nos. One and Two are overruled.
Goins v. McLoud,
The defendants assign as error the failure of the trial court to sustain their motion for judgment of nonsuit made at the close of all the evidence. They contend that Green, and also plaintiff, had forfeited the lease by failing to pay rent, taxes and make improvements on the premises. The lease contains no forfeiture clause upon failure to pay rent. A forfeiture under G.S. 42-3 for failure to pay rent is not effective until the expiration of ten days “after a demand is made by the lessor or his agent on said lessee for all past due rent.”
Trust Co. v. Frazelle,
The defendants further contend that the description of the land in the lease is too vague and indefinite to be enforceable. This is the description in the lease: “The following lands and premises, with the improvements thereon, or tobe placed thereon, and, In Buncombe County, North Carolina, being a farm about 64 acres, in Hominy Township, adjoining Yin-cent Robinson on the west, Wheaton MeMicken on the north and west; and by John McElreath and Spurgeon Poore on the south by Willie Jamerson.” Later on in the instrument occurs this language: “If this option is not exercised the property is to be redelivered to the parties of the first part at the end of the lease, and all improvements placed thereon are to be and become the property of the parties of the first part.”
The description is as definite as the description in
Speed v. Perry,
The defendants also contend that Green had surrendered the lease to them. If he had, there is no evidence that plaintiff knew of it before the assignment was made to him.
This Court said in
Crotts v. Thomas,
The evidence, considered as we must on a motion for nonsuit, tends to show that the option to purchase the premises described in the lease was in effect when the plaintiff notified the defendants of his election to purchase the property. The assignment of error for failure to sustain the motion for judgment of nonsuit is overruled.
The defendants have many assignments of error as to the admission and exclusion of evidence. The defendants have cited nO' authority in respect to these assignments of error, except that they say several questions and answers “violate the Dead Man’s Rule Statute, G.S. 8-51.” As to several of these assignments of error, no argument is made. It would serve no useful purpose to discuss them in detail, for the reason that the action must go back for a new trial for error in the charge, and these questions may not arise again.
The defendants assign as error the trial court, upon motion of the plaintiff, in its discretion permitting the plaintiff after verdict and before judgment to amend his complaint so as to describe the land, the subject matter of this action, more definitely: the order being entered without notice to defendants or their counsel. The trial court had authority to make such an order in its discretion. G.S. 1-163;
Chaffin v. Brame,
The defendants’ assignment of error to the charge is sustained. The charge of the court is as follows: “Members of the Jury: The Court takes the view on this matter on the evidence the matter devolves itself into a matter of law. The Court therefore instructs the jury that if you find the facts to be as all the evidence which has been introduced in the case tends to show that you would answer the issue which the Court will submit to you Yes.” The jury, after the delivery of the charge, retired *527 to its room at 11:10 a.m. At 11:20 a.m. the court recalled the jury, and the following took place :
“The Oouet: Members of the jury, I call you back. Hare you reached your verdict ?
“FOREMAN: Give us five minutes more and we will.
“The Couet: I didn’t know if you understood my instruction. My instructions were: If you find the facts to be as all the evidence tends to show, you would answer it Yes. You may retire.”
The jury at 11:30 a.m. returned its verdict, answering the issue “Yes.”
Discussing a similar charge in
Shelby v. Lackey,
The defendants are entitled to a new trial; and it is so ordered.
New trial.