Council v. Greensboro Joint Stock Land Bank
| Decision Date | 24 February 1937 |
| Docket Number | 114. |
| Citation | 189 S.E. 777,211 N.C. 262 |
| Parties | COUNCIL et al. v. GREENSBORO JOINT STOCK LAND BANK et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Edgecombe County; M. V. Barnhill, Judge.
Action by J. W. Council and others, mortgagors, against Greensboro Joint Stock Land Bank, J. H. Blount, J. K. Blount, F. L Blount, and another, to recover land alleged to have been wrongfully sold under foreclosure. Demurrer by defendants Blount to amended complaint was sustained, and the plaintiffs appeal.
Reversed.
Action by mortgagors to recover land alleged to have been wrongfully sold under foreclosure.
Demurrer by defendants Blount was sustained by Harris, J., with leave to amend. Amendment filed, and demurrer to amended complaint sustained by Barnhill, J.
Plaintiffs appealed.
Bennett & McDonald, of Durham, for appellants.
The defendants Blount demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action against them. The other defendants answered.
The effect of a demurrer is to admit the truth of all the material facts alleged, and every intendment is adopted in behalf of the pleader. The statute (C.S. § 535) requires that the complaint be liberally construed with a view to substantial justice between the parties. Ramsey v Furniture Co., 209 N.C. 165, 183 S.E. 536.
To determine the correctness of the ruling of the court below it is necessary to examine the complaint and amendment in the light of this rule.
The pertinent allegations are as follows:
"That on the 14th day of July, 1924, the plaintiffs executed a mortgage to the defendant, The Greensboro Joint Stock Land Bank, securing a note of even date in the sum of $5,500.00 payable semiannually, the same to be due and payable on the first day of August, 1957.
That thereafter on the 31st day of August, 1931, the defendant, The Greensboro Joint Stock Land Bank, attempted to foreclose said mortgage, and on the 29th day of April, 1932, the said Greensboro Joint Stock Land Bank attempted to execute a deed by reason of said attempted foreclosure to C. E. Fleming of Guilford County, North Carolina, upon a purported consideration of $4,000.00; that immediately thereafter on the 6th day of May, 1932, Book 268, page 450, the said C. E. Fleming attempted to transfer said property described in the mortgage above referred to, to The Greensboro Joint Stock Land Bank.
That on the 8th day of January, 1934, the said defendant, The Greensboro Joint Stock Land Bank, attempted to transfer said property as described in the mortgage heretofore referred to, to the defendants, J. H. Blount, J. K. Blount, and F. L. Blount of Pitt County, North Carolina.
That the defendant, C. E. Fleming, as the plaintiff is informed, believes, and so alleges was and is connected with the defendant, The Greensboro Joint Stock Land Bank, and was at the time an official of said bank, to wit, Secretary and Treasurer, and acting in said capacity at the time he purchased said land at the foreclosure sale, and was acting as the agent of said bank. And the defendant, The Greensboro Joint Stock Land Bank, and the said C. E. Fleming conspired together to wrongfully obtain the lands and property of the plaintiffs, and that by reason of same said sale was fraudulent and voidable.
That the sale by the Greensboro Joint Stock...
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