Streator v. Streator

• Decision Date: 30 October 1907
• Citation: Streator v. Streator, 145 N.C. 337, 59 S.E. 112 (N.C. 1907)
• Parties: STREATOR et al. v. STREATOR.
• Court: North Carolina Supreme Court

59 S.E. 112

145 N.C. 337

STREATOR et al. v. STREATOR.

Supreme Court of North Carolina

October 30, 1907

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

Action by Maggie Streator and others against W. B. Streator. From the judgment, defendant appeals. No error.

Where a complaint alleged that defendant procured certain lands to be conveyed to himself under a parol agreement, etc., an answer setting up that defendant has no knowledge or information sufficient to form a belief as to the truthfulness thereof and therefore denies the same, was an insufficient denial of matters alleged to be in the personal knowledge of defendant and the court properly rendered judgment on such allegation for want of denial.

H. H McLendon, for appellees.

CLARK C.J.

The complaint alleges that the defendant procured the lands to be conveyed to himself in pursuance of a parol agreement that he would hold the same in trust for the benefit of his mother himself, and the other heirs at law of his father, and that the deed was executed to him upon that parol trust and condition. To this averment the answer sets up that the defendant "has no knowledge or information sufficient to form a belief as to the truthfulness thereof, and therefore denies the same." This is an insufficient denial of matters alleged to be in the personal knowledge of the defendant, and the court properly rendered judgment on that allegation for want of a denial. Machine Co. v. Mfg Co., 91 N.C. 74; Avery v. Stewart, 134 N.C. 299, 46 S.E. 519. The point is so fully discussed and clearly stated by Walker, J., in Avery v. Stewart, 136 N.C. 432, 48 S.E. 775, 68 L. R. A. 776, as to render repetition here entirely unnecessary. The answer being insufficient, and in law and in fact no answer, on this point, judgment on this point for want of an answer was the right of the plaintiff ( Phifer v. Insurance Co., 123 N.C. 410, 31 S.E. 716; Carroll v. McMillan, 133 N.C. 140, 45 S.E. 530), unless the court in its discretion had allowed an amendment. Its refusal to do so is not reviewable. Avery v. Stewart, 134 N.C. 299, 46 S.E. 519. The learned judge in this case acted carefully and intelligently, and refused to allow an amendment only after full inquiry and investigation.

The issues tendered by the defendant were not raised by the pleadings, and were properly refused. The exceptions for exclusion of evidence are without merit, and need no discussion. The...