Foy v. Stephens

• Decision Date: 24 March 1915
• Docket Number: (No. 173.)
• Citation: 168 N.C. 438,84 S.E. 758
• Parties: FOY et al. v. STEPHENS et al.
• Court: North Carolina Supreme Court

84 S.E. 758

168 N.C. 438

FOY et al.

v.STEPHENS et al.

(No. 173.)

Supreme Court of North Carolina.

March 24, 1915.

Appeal from Superior Court, Craven County; Peebles, Judge.

Action by W. J. Foy and C. E. Ipock against A. H. Stephens and others. Judgment on demurrer for defendants, and plaintiffs appeal. Reversed and remanded, with instructions.

The complaint and the answer were read at the trial, and then the defendants demurred ore tenus upon the ground that the complaint failed to state a cause of action. His honor sustained the motion and dismissed the action.

Guion & Guion, of Newbern, for appellants.

D. L. Ward, of Newbern, and Robert Ruark, of Wilmington, for appellees.

BROWN, J. [1] The only question presented relates to the sufficiency of the complaint to make out a cause of action. We have held that a demurrer will not be sustained, to the extent of dismissing the action, unless it entirely fails to state a cause of action. If in any portion of it it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements; for contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient Brewer v. Wynn, 154 N. C. 472. This case is affirmed and cited with approval in the recent case of Hoke against Glenn, S. E., vol. 83, at page 808. Where it is manifest that the complaint defectively states a good cause of action, and the defect can be cured by amendment, the courts will allow the amendment rather than dismiss the action. This is in the interest of justice, and the speedy trial of actions.

The complaint states substantially these facts: That the defendant Stephens contracted to sell certain tracts of land to the plaintiff for $24,000; at the time representing to the plaintiff that the said lands had been fully surveyed and plotted, and exhibited to plaintiffs a blueprint thereof, which survey purported to cover one entire tract or body of land containing 5, 000 acres. The defendant further represented that he had a good and indefeasible title to the land. The plaintiffs further allege that they had no knowledge or information whatever concerning the acreage, boundaries, or title to the land other than that imparted by the defendant, that they agreed to purchase said land at the price named, upon condition that the tract contained the acreage as represented, and that the title was good and indefeasible. It was agreed between the plaintiffs and the defendant that the plaintiffs should proceed to survey and plot the land and employ a lawyer to investigate the title upon the agreement of the defendant to convey the full boundaries and acreage by deed in fee. The defendant executed to the plaintiff a deed, which was duly recorded. The plaintiffs further allege that it was agreed that the plaintiff Foy pay into the hands of Geo. H. Roberts $7,000, to be held by him to await the survey of the land for the purpose of ascertaining the acreage, as well as determining the title. It was agreed that D. E. Henderson, an attorney, should investigate the title and the money should be paid over upon his certificate that the titles to said land were good and indefeasible. Upon like condition the plaintiff Foy executed his note for $4,000, which was deposited as aforesaid, and the sum of $1,000 was paid by Foy to the attorney, as per agreement with the defendant, to pay attorney's fees and expenses, the residue, if any, to be turned over to the defendant in case the purchase was finally consummated. The plaintiff Ipock executed his note for $12,000, secured by mortgage on his one-third interest in said lands so contracted to be conveyed. This note was de-livered to the defendant with the distinct understanding and agreement that the defendant was to hold the same to await the report of the attorney as to the acreage, boundaries, and title to the land. The plaintiffs further allege that it turned out, upon a survey of the said land, that the whole acreage thereof was 3, 315 acres, and that by actual survey out of that acreage 2, 100 acres were held and claimed by superior titles, leaving only 1, 200 acres, and the title to that...