Toler v. French

• Decision Date: 13 April 1938
• Docket Number: 307.
• Citation: 196 S.E. 312,213 N.C. 360
• Parties: TOLER et ux. v. FRENCH.
• Court: North Carolina Supreme Court

196 S.E. 312

213 N.C. 360

TOLER et ux. v. FRENCH.

No. 307.

Supreme Court of North Carolina

April 13, 1938

Appeal from Superior Court, Craven County; W. C. Harris, Judge.

Action in ejectment and for damages by John Toler and wife against L. J. French, wherein defendant filed a "cross action" to which plaintiffs demurred.Judgment sustaining the demurrer, and defendant appeals.

Reversed.

Civil action in ejectment and for damages.

Plaintiffs allege that they are owners in fee simple and entitled to the possession of certain specifically described lands of which the defendant is in the unlawful possession, by reason of which they have been damaged in the sum of $300.Defendant denies each of the allegations of the complaint, and "For Cross Action and For Further Defense," avers:

5.That L. L. McClees is the true owner of the property and d house in which the defendantL. J. French now lives, and that the said L. L. McClees has heretofore entered into a good, valid and binding contract to sell the said property to this defendant.

6.That by numerous correspondence and by written agreement the said L. L. McClees bargained and agreed to sell the said premises to this defendant for the sum of $700, and that this defendant was ready and willing at all times and still is ready and willing to carry out his part of the said contract and agreement and that this defendant has at all times had the funds available and necessary to carry out the said agreement.

7.That this defendant is advised, informed and believes that for some time prior to the entering into a contract of sale between L. L. McClees and this defendant, that John Tolerthe plaintiff herein, conspired, colluded and connived with the said L. L. McClees to defraud the said L. J. French, the defendant herein, out of his rights under the said contract above referred to.

8.That as a result of the said conspiracy and connivance above referred to, the said L. J. French has executed what purports to be a good and sufficient warranty deed to the said John Toler for the purpose, as this defendant is advised, informed and believes, of removing this property from the reach of this defendant and of depriving him of the possession of a good and valid contract.

9.That this defendant is advised, informed, believes and so alleges that the said John Toler has no real interest in this property above named, but merely permitted himself to be used as a tool in this purported purchase and that in truth and in fact the said John Toler has paid no good and valid consideration for the property referred to in the complaint and that the said John Toler is in truth and in fact not the owner of the said property but is the agent of the said L. L McClees, acting for him in his behalf for the purposes of defrauding the defendant herein and depriving him of such rights as he had under the good and valid contract of the sale heretofore referred to."

Plaintiffs demur to the cross-action for that it does not state facts sufficient to constitute a cause of action against plaintiffs.

From judgment sustaining the demurrer, defendant appealed to Supreme Court, and assigns error.

The office of a "demurrer" is to test the sufficiency of a pleading, admitting for the purpose the truth of allegations of fact contained therein, and ordinarily relevant inferences of fact necessarily deducible therefrom are also admitted.

Abernethy & Abernethy, of New Bern, for appellant.

M. S. Dunn, D. H. Willis, and R. E. Whitehurst, all of New Bern, for appellee.

WINBORNE Justice.

The question: Did the court err in sustaining the demurrer?We so hold.

While in the present case, defendant designated his further pleading as a "Cross Action," it is nothing more than a further defense."The allegation of defective title is a matter of defense, and not a counterclaim."Bank v. Loughran,122 N.C. 668, 30 S.E. 17, 19. C.S. § 543.Hughes v. McNider,90 N.C. 248.Fitzgerald v. Shelton,95 N.C. 519.

"As to matter set up as defense the usual ground of demurrer is its insufficiency, and this may be taken by a formal demurrer or demurrer ore tenus."McIntosh, 507, § 475.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted."Stacy, C.J., in Ballinger v. Thomas,195 N.C. 517, 142 S.E. 761, 763.Andrews v. Oil Co.,204 N.C. 268, 168 S.E. 228.

Both the statute and decisions of this court require that the answer be liberally construed, and every reasonable intendment and presumption must be in favor of the pleader.It must be fatally defective before it will be rejected as insufficient.C.S. § 535.Blackmore v. Winders,144 N.C. 212, 56 S.E. 874;Brewer v. Wynne,154 N.C 467, 70 S.E. 947;North Carolina Public Service Co. v. Power Co.,179 N.C. 18, 101 S.E. 593, 12 A.L.R. 304;Anthony v....