Garrison v. Williams
Decision Date | 19 May 1909 |
Citation | 64 S.E. 783,150 N.C. 674 |
Parties | GARRISON et al. v. WILLIAMS et al. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Ferguson, Judge.
Action by Ida E. Garrison and others against Richard Williams and others. A demurrer to the complaint was sustained, and plaintiffs appeal. Reversed.
Avery & Ervin and Avery & Avery, for appellees.
This action was brought by the plaintiffs for the purpose of having the defendants declared trustees for the feme plaintiff, Ida E. Garrison, of certain tracts of land described in the amended complaint, containing about 1,500 acres. She alleged: That on August 14, 1900, she duly entered said land in the office of the entry taker of Burke county that in the year 1902 the defendant Richard Williams entered the same land, and his rights under said entry, if any, have passed to his codefendants with notice of the prior entry of the feme plaintiff; that on December 22, 1902, just nine days before the time limited for the feme plaintiff to take out her grant, the defendants protested her entries, and thereby prevented her from having a grant issued during the pendency of the proceedings to determine the validity of the protest that while said proceeding was pending, and during the year 1904, the defendants caused grants to be issued upon the entry laid by the said Richard Williams and thereby acquired, though unlawfully, wrongfully, and fraudulently, the legal title to the premises; that the protest of the defendants was at August term, 1905, of the superior court decided against them, and the feme plaintiff thereupon, and within nine days after the rendition of the judgment of the court in the said proceeding, obtained warrants of survey and received grants from the state for the said lands. Answers were filed by the defendants denying the fraud alleged in the complaint and esserting title to the land in dispute. When the case was called for trial, the defendants demurred ore tenus to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained. The plaintiffs excepted and assigned the following errors:
Disposing of the question of procedure in limine, we have repeatedly held that, where a complaint states no cause of action, such a defect is not waived by answering. The defendant may demur ore tenus, and furthermore this court may take notice, ex mero motu, of the insufficiency of the complaint in this respect. If the cause of action, as stated by the plaintiff is inherently bad, why permit him to proceed further in the case, for, if he proves everything that he alleges, he must eventually fail in the action? Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Elam v. Barnes, 110 N.C. 73, 14 S.E. 621. Our decisions upon...
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