Alston v. Hill

• Decision Date: 01 April 1914
• Citation: 81 S.E. 291,165 N.C. 255
• Parties: ALSTON v. HILL ET AL.
• Court: North Carolina Supreme Court

81 S.E. 291

165 N.C. 255

ALSTON v. HILL ET AL.

Supreme Court of North Carolina

April 1, 1914

Appeal from Superior Court, Franklin County; Cooke, Judge.

Action by Allen Alston against K. P. Hill and others. From a judgment for plaintiff upon the pleadings, defendants appeal. Reversed.

A motion for judgment on the pleadings is in the nature of a demurrer, and every intendment must be taken against the party making it, so that every fact necessary to be established must be admitted specifically or by absolute failure to deny them.

W. H Yarborough, Jr., and Bickett, White & Malone, all of Louisburg, for appellants.

B. G Mitchell, of Lenoir, and T. T. Hicks, of Henderson, for appellee.

BROWN J.

This is a civil action, brought to set aside a certain deed of trust upon the ground that its execution was procured by an agreement to suppress a criminal prosecution.

There are also allegations in the complaint practically charging further, that the said deed was executed under duress. It appears from the complaint that the defendants charged the plaintiff with having bought seed cotton, upon which the defendant had a mortgage, from one Fowler in the nighttime, contrary to the statute in such cases made and provided; that a warrant was duly issued by a justice of the peace, and upon this warrant plaintiff was arrested; that after his arrest he assumed the payment of the debt secured by the mortgage on the cotton he was charged with having bought in the nighttime, and the said mortgage was transferred to him; that thereafter the magistrate dismissed the case against the plaintiff upon the ground that no one appeared to prosecute him.

The plaintiff alleges that he was practically forced into signing the mortgage under threats of a criminal prosecution, and was told that he would be discharged if he executed the paper. These allegations are denied by the defendants.

Then the defendants, in their answer, aver that: "The facts in relation to the whole matter are as follows: That one John Fowler was indebted to the Hill Live Stock Company in a large amount, to wit, * * * and secured by crop liens and chattel mortgages; that said mortgagees were reliably informed that said plaintiff, Allen Alston, had conspired with said John Fowler to cheat and defraud them, by an unlawful disposition of the said crops, by the purchase during the nighttime from the said Fowler of crops conveyed to them in said liens. Acting upon such information, said mortgagees had plaintiff arrested upon a warrant charging him with the buying of seed cotton from said Fowler during the nighttime. After his arrest, and before he came to Louisburg, said plaintiff told said Hudson that he wanted to fix the matter up and arrange it; that he admitted his guilt, and said in the presence of said Fowler and son that he had bought the cotton from them said plaintiff at first denied to Hudson that he had bought...