#### H. H. GROVES et al. v. J. WHITE WARE et al.

(Filed 30 November, 1921.)

1. Guardian, and Ward — Clerks of Court — Summons—Personal Service on Ward — Valid Process — Statutes.

Where a guardian ad litem has been duly aixpointed to represent a party to an action under disability, tbe court will protect bis interest, and tbougb our statute specifies that a summons must be served on sucb person, no practical barm would result therefrom to tbe ward where a guardian ad litem has been appointed, and he accepts the service of the summons and presumably performs Ms statutory duties; and the proceedings will not be declared void as to the ward when such has been done. C. S., 451.

2. Guardian and Ward — Disability—Insane Persons — Clerks of Court_ Appointment — Certificates—Public Institutions — Statutes—Evidence.

The certificates of the superintendents of hospitals for the insane, which are to be received as sufficient evidence for tbe clerk of the Superior Court to appoint a guardian for an insane person, etc., when duly sworn to and subscribed before the clerk of the Superior Court, notary public, etc., C. S., 2286, relates to the superintendents of such hospitals under governmental control, and do not include within the meaning of the statute superintendents of private institutions of this character, and the appointment by the clerk of guardians ad litem on their certificates is void.

3. Constitutional Law — Statutes—Trial by Jury — Insane Persons — Disability — Statutes—Guardian and Ward — Inquisition of Lunacy.

The constitutional provision preserving the fight to a trial by jury, Article I, section 19, applies only to cases in which the prerogative existed *554at common law or by statute at the time the Constitution was adopted, and C. S., 2287, requiring that only sis freeholders shall be summoned to inquire into the sanity of the person alleged to be insane, is constitutional, not requiring a jury of twelve.

4. Insane Persons — Disability—Statutes—Inquisition of Lunacy — Partition — Ratification—Deeds and Conveyances — Statutes.

Where the clerk of the court has unlawfully appointed a guardian ad Mem, upon insufficient evidence, in proceedings to partition land, and thereafter the ward has been adjudged sane under the proceedings of C. S., 2287, the ward may ratify the division of land allotted in the proceedings by receiving the benefits thereof, and executing interchangeable deeds with the other parties.

Appeal from a judgment of Shaw, J., rendered at chambers in the city of Charlotte on 1 November, 1921, overruling the defendant’s demurrer to the complaint, from GastoN.

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 allotting dower, said report was confirmed by said clerk. Subsequent thereto an ex parte proceeding was instituted by H. H. Groves, L. 0. 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 *555for tbe purpose of making sucb partition, a decree was entered by said clerk confirming tbe report of said commissioners, and tbe land was accordingly partitioned among said tenants. After tbis partition was made, H. LL Groves and bis wife conveyed tbe land, or a part of tbe land allotted to H. H. Groves, to tbe defendants, J. "White Ware, J. E. Simpson, and J. A. Estridge, at tbe purchase price of $26,000, which was secured by a deed of trust. J. E. Simpson paid as a part of tbe purchase price $8,666.67, and tbe defendants Ware and Estridge refused to complete their payments on tbe ground that said land bad not been legally partitioned, in that E. E. Groves bad not been legally appointed guardian for said Forest M. Groves, and that Forest M. Groves bad not been personally served with summons. A petition was filed by E. E. Groves for tbe purpose of having said Forest M. Groves declared sane, and afterward a jury was summoned to inquire into tbe 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 bis own affairs. Thereafter, on 8 April, 1921, tbe clerk of tbe Superior Court made an order confirming tbe report of said jury. After tbis order of tbe clerk bad been made Forest M. Groves tendered to Sarah E. Groves a quitclaim deed for all bis right, title, and interest in and to tbe land allotted her as dower, reserving bis rights as remainderman in the same, and tendered also a quitclaim deed to tbe defendants Ware, Simpson, and Estridge for tbe lands conveyed to them by H. H. Groves and wife, and, in addition, a quitclaim deed to L. 0. Groves and E. E. Groves for tbe land allotted to them. Tbe widow and tbe tenants in common have tendered quitclaim deeds to each other, mutually releasing to each other tbe interest which each tenant bad in tbe land allotted to tbe other tenants. H. H. Groves endorsed to tbe Groves Mill Company, Inc., of Gastonia, tbe note executed as evidence of tbe purchase price of tbe land sold by him to tbe defendants Ware, Estridge, and Simpson.

Tbe defendants filed a formal demurrer to tbe complaint, which is as follows: “Tbe defendants demur to tbe complaint herein on tbe grounds that tbe same does not state a cause of action, particularly in that tbe said Forest M. Groves was not legally served with summons nor legally brought into court, and that tbe proceedings for bis restoration to a normal and mental condition are not legal, and that tbe said H. H. Groves and wife cannot deliver to tbe defendants Ware, Estridge, and Simpson a good, legal, and indefeasible title to tbe lands which were conveyed by tbe said H. H. Groves and wife to tbe said Ware, Estridge, and Simpson, and that tbe said H. H. Groves has no legal right to collect tbe purchase money therefor.”

*556Judge Thomas J. Shaw heard the argument at chambers in the city o£ Charlotte on 7 November, 1921, and rendered judgment overruling the demurrer. The defendants excepted, and appealed to the Supreme Court.

Mangum, & Dernvy for plaintiff.

J. W. Timberlake for the defendants Ware, Hstridge, and Simpson.

Clarence N. Austin for Forest M. Groves.

Adams, J.

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 proposition seriatim.

C. S., 451, 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 axapoint a guardian ad litem to defend in his behalf. The requirement of the statute as to the service of a summons on a person who is non compos mentis should be strictly observed, but the question here presented concerns the legal effect of a failure to make such service. The guardian ad litem accepted service, and presumably performed his statutory duties. In Matthews v. Joyce, 85 N. C., 258, Smith, C. J., said: “While, according to recent decisions, jurisdiction over the person of infants is acquired only as in the other cases by the service of process on them, and then it is competent to appoint, in case there is no general guardian, a guardian ad litem to act in their behalf and to protect their interests so as to bind them by judicial action, a different practice has long and almost universally prevailed in this State, and this power of appointment has been generally exercised without the issue of process, for the reason that no practical benefit would result to the infant from such service on him, and the court always assumed to protect the interests of such party, and to this end committed him to the defense of this special guardian.” Practically to the same effect is the language of Uolce, J., in Rawls v. Henries, 172 N. C., 218: “The facts in evidence strongly tend to show that the proceedings were in all respects regular and that defendant’s title has never been open to question; but were it otherwise, and by reason of the fact that summons was not personally served on the minor, our authorities are very uniformly to the effect that the interest of the minor having been presented, and an answer having been filed by his general guardian or guardian ad litem, the failure to serve on the minor personally was only an irregularity, to be corrected, if at all, by motion in the cause. Harris v. Bennett, 160 *557 N. C., 339; Glisson v. Glisson, 153 N. C., 185; Rackley v. Roberts, 147 N. C., 201; Carraway v. Lassater, 139 N. C., 145; Carter v. Rountree, 109 N. C., 29; Matthews v. Joyce, 85 N. C., 258. And these authorities are to the effect that, even when properly applied for, an irregular judgment is not to be set aside as a conclusion of law because of the irregularity, but only on a show of merits, and when the complaining party has proceeded with proper diligence.”

It is insisted in the next place that the clerk’s order appointing a guardian for Forest M. Groves is void, because the clerk had no legal right to make such appointment upon the certificate of Dr. Hall. O: S., 2286, is as follows: “If any person is confined in any hospital for insane persons, in any state, territorial, or governmental asylum or hospital, in this State or any other state or territory, or in the District of Columbia, the certificate of the superintendent of such hospital declaring such person to be of insane mind and memory, which certificate shall be sworn to and subscribed before the clerk of the Superior Court or any notary public, or the clerk of any court of record of the county in which such hospital is situated, and certified under the seal of court, shall be sufficient evidence to authorize the clerk to appoint a guardian for such idiot, lunatic, or insane person.”

It was evidently intended by the General Assembly that the certificate of insanity should be received and accepted as evidence only when made by the superintendent of a hospital which is subject to state, territorial, or governmental control, and not when made by the manager or superintendent of a private institution, who occupies no public official position and is not directly subject to governmental supervision. The complaint alleges that Westbrook Sanatorium is a private institution, and for this reason we are of opinion that the certificate of Dr. Hall was not such as the statute contemplates, and did not authorize the clerk’s appointment of the guardian.

The complaint alleges, however, that Forest M. Groves was restored to sound mind and memory, and thereafter ratified the proceedings both for partition and for the allotment of the widow’s dower. The demurrer admits this allegation; but the defendants contend that the alleged order of restoration to sanity was based upon a proceeding which is unconstitutional ; that the jury was composed of six men, instead of twelve; and that Forest M. Groves was deprived of his property without due process of law. This contention presents the third ground of objection to the complaint.

O. S., 2287, provides that when any insane person becomes of sound mind and memory, a petition in his 'behalf may be filed before the clerk of the Superior Court of the county of his residence setting forth the facts; whereupon, a jury of six freeholders shall be summoned to inquire *558into tbe sanity of tbe person alleged to be sane, and if tbe jury shall find him to be sane, such person may make contracts and sell bis property.

Tbe complaint alleges that tbe fact of Groves’ restoration was inquired into and determined by a tribunal created under tbe provisions of tbis statute.

It is not necessary to discuss tbe question at length. That a state cannot deprive a person of bis property without due process of law does not necessarily imply that all trials in tbe state courts shall be by a jury composed of twelve men. Maxwell v. Dow, 176 U. S., 603; Walker v. Sauvinet, 92 U. S., 92. Nor is tbe contention of tbe defendants necessarily determined in their favor by Article I, section 19, of tbe Constitution of North Carolina. Tbe right to a trial by jury, which is provided in tbis section, applies only to cases in which tbe prerogative existed at common, law, or was procured by statute at tbe time tbe Constitution was adopted, and not to those where tbe right and tbe remedy with it are thereafter created by statute. 16 R. C. L., 194. In Lindsay v. Lindsay, 45 L. R. A. (N. S.), 914, tbe Supreme Court of Illinois, in a discussion of tbe question presented here, said: “On tbe trial of tbe case before tbe county court, a jury of twelve men was demanded and was denied.” Tbe statute, as we have said, provided for trial by a jury of six. Upon tbis question tbe Court said: “Tbe constitutional provision that ‘the right of trial by jury, as heretofore enjoyed, shall remain inviolate,’ does not apply. Tbis is not a proceeding according to tbe course of tbe common law, in which tbe right of a trial by jury is guaranteed, but tbe proceeding is a statutory one, and tbe statute, too, enacted since tbe adoption of tbe Constitution. There was not, at tbe time of such adoption, tbe enjoyment of a jury trial in such a case. In reference to tbis subject, generally, Judge Cooley, in bis work on Constitutional Limitations, p. 319, remarks: ‘But in those cases which formerly were not triable by jury, if tbe Legislature provide for such a trial now, they may doubtless create for tbe purpose a statutory tribunal composed of any number of persons, and no question of constitutional .power or right could arise.’ ”

Tbe proceeding under section 2287 was not according to tbe course of tbe common law, and tbe constitutional inhibitions do not apply. Tbe judgment overruling tbe demurrer is

Affirmed.