Womack v. Carter

• Citation: 75 S.E. 1102,160 N.C. 286
• Parties: WOMACK v. CARTER.
• Decision Date: 23 October 1912
• Court: United States State Supreme Court of North Carolina

75 S.E. 1102

160 N.C. 286

WOMACK v. CARTER.

Supreme Court of North Carolina

October 23, 1912

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

Action by Winder C. Womack against A. G. Carter, administrator. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

A complaint in an action for money, which alleges that defendant's testator took possession of plaintiff's land, situated in a designated township and county, and leased the same to tenants, and collected the rents, and failed to account for them, but converted them to his own use, sufficiently describes the land as against a demurrer.

The Hilary rules of pleading, that in trespass quare clausum fregit the name of the close or abuttals must be stated, or a special demurrer will be sustained, have never been in force in North Carolina.

Hoyle & Hoyle and J. W. Ruark, all of Sanford, for appellant.

McIver & Williams, of Sanford, for appellee.

WALKER J.

Plaintiff brought this action to recover the sum of $1,140, and in his complaint he states his cause of action in three different ways: (1) That defendant's testator took possession of certain land situated in Sanford township, Moore county (now Lee county), the property of the plaintiff, leased the same to tenants, and collected the rents for the use of the plaintiff, to the amount of $1,140. That said amount has never been paid to plaintiff, but is now held by defendant for his use. (2) In the next count, if it may be so called it is alleged, in substantially the same words, that the land of plaintiff was leased by defendant's testator to tenants, and the rents collected by him; the only difference between the two counts, if there be a difference, being that it is alleged in the second count that the said real estate belonged to plaintiff and the rents were payable to him, but instead of paying them to plaintiff, the defendant's testator collected the same, to the amount of $1,140, and wrongfully converted them to his own use. (3) The third count alleges, in substance, that defendant's testator wrongfully took possession of the land by his tenants, and unlawfully withheld the same from plaintiff; a reasonable rental for the land being $1,140.

The defendant demurred upon the ground that, while the complaint alleges a wrongful possession of the land by defendant's testator and demands the rents and damages, it does not describe the premises with sufficient certainty, so that they may be identified by the defendant and he may intelligently answer the complaint. Plaintiff moved for judgment on what he calls the first and second causes of action. This motion was denied, and properly so, as the complaint states but one cause of action in three several ways. It is all one and the same transaction, and plaintiff seeks, in the end, to recover $1,140, which was received by the defendant as rent for his lands. Simpson v. Lumber Co., 133 N.C. 95, 45 S.E 469. Whether it was received under a contract of lease between plaintiff and defendant's testator, or whether the testator entered upon the land wrongfully and received its rental value, can make no difference. Plaintiff would be entitled to recover the $1,140 in either view; in the last because he could waive the tort and recover in contract for money had and received. For the same reason the court should not have sustained the demurrer, as it did. In the first place, the entire complaint showed clearly and beyond any possibility of doubt, and defendant could surely not have been misled thereby, that plaintiff was seeking to recover the rental value of the land, which had been collected from his tenants by defendant's testator.

But the demurrer is based upon the specific ground that the land is not sufficiently described, and is bad if there is a sufficient description, even if that kind of objection can be taken by demurrer. The land is described as belonging to plaintiff, and situated in Sanford township, Lee county, and the same which defendant's testator took into his possession and leased to tenants, and for which he collected the rents in the month of May, 1910. This would seem to be sufficiently definite in an action of this nature. In Whitaker v. Forbes, 68 N.C. 228, it was alleged that the defendant unlawfully and forcibly entered upon a tract of land in Enfield, Halifax county, the property of plaintiff and did then and there pull down and destroy a frame house of great value, for which damages for the tort were prayed. Defendant demurred upon the ground "that the complaint does not sufficiently describe the lot and premises on which the trespass were done." With reference to the ruling by which the demurrer was sustained, this court, by Justice Boyden, said: "The sole question in the cause is as to description of the land and premises in an action of trespass. It is not necessary to decide how...