Town of Wadesboro v. Coxe

• Decision Date: 31 May 1939
• Docket Number: 608.
• Citation: 2 S.E.2d 876,215 N.C. 708
• Parties: TOWN OF WADESBORO v. COXE et al.
• Court: North Carolina Supreme Court

2 S.E.2d 876

215 N.C. 708

TOWN OF WADESBORO v. COXE et al.

No. 608.

Supreme Court of North Carolina

May 31, 1939

B M. Covington, of Wadesboro, for appellants.

Robinson Pruette & Caudle, of Wadesboro, for appellee.

SCHENCK Justice.

This is an appeal by the defendants from a denial of their motion to strike from the complaint paragraphs 8 and 9 for that the allegations therein are irrelevant and immaterial to the plaintiff's alleged cause of action, said motion having been made in apt time under C.S. § 537.

The complaint alleges that the defendants Fred J. Coxe and wife Elizabeth D. Coxe, were property owners within the Town of Wadesboro, and were two of the majority of property owners who petitioned the town to improve certain lots of land with frontage on Lee Avenue, and that pursuant to the petition and in accord with Chapter 56, Article 9, of Consolidated Statutes and amendments thereto, the town effected the improvements petitioned for, the cost of which became a lien on the land so improved; and that said Coxe and wife paid several installments of the assessment against their land on Lee Avenue, and thereafter conveyed said land to the defendants James A. Hardison and wife, Lillian H. Hardison, subject to the portion of the assessment lien still unpaid; and that the defendants, the said Coxe and wife and the said Hardison and wife, decline to pay the remaining assessments now due and unpaid. The prayer of the complaint is that the plaintiff recover the amount of the unpaid assessment against the land, and that said land be condemned and sold for the satisfaction of the assessment lien.

The complaint contains the further allegations of paragraphs 8 and 9, which the defendants moved to strike out, as follows:

"8. This plaintiff is further informed, believes and so alleges that at the time the property was sold to the defendants, James A. Hardison and wife, Lillian H. Hardison, two of the said defendants, they had the title to said property examined and were informed that there was an unpaid assessment lien affecting said property in the sum of $758.42, with interest thereon as prescribed by the statute; and that when the sale of said property was made by the defendants, Fred J. Coxe and wife, Elizabeth D. Coxe, to the said James A. Hardison and wife, Lillian H. Hardison, the amount of the assessment lien was not paid to the defendants, Fred J. Coxe and wife, Elizabeth D. Coxe, but was retained, and as this plaintiff is informed and believes, is still in the possession of the said James A. Hardison and wife, Lillian H. Hardison.

"9. That the defendants, Fred J. Coxe and wife, Elizabeth D Coxe, after having encouraged, petitioned and urged the plaintiff to make the local improvements affecting their property above-described, which local improvements were made according to their wishes and as prescribed by the statute, this plaintiff is informed and believes that the said defendants, Fred J. Coxe and wife, Elizabeth D. Coxe, are now seeking to defeat the payment of said assessment lien by failing and refusing to permit the purchasers of said property to pay over to the Town of...