Toler v. . French

Winborne, J. 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 the defective title is a matter of defense and not of counterclaim.” Ba nk v. Loughran, 122 N. C., 668, 30 S. E., 17; 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 ienus.” McIntosh, 507, sec. 475. “The office of demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of the facts contained therein, and ordinarily relevant inferences of fact, necessarily dedueible therefrom, are also admitted. . . .” Stacy, C. J., in Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761; 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 *363 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; Public Service Co. v. Power Co., 179 N. C., 18, 101 S. E., 593; Anthony v. Knight, 211 N. C., 637, 191 S. E., 323. Tbe matters set up are in tbe nature of an equitable defense and must be pleaded. McLaurin v. Cronly, 90 N. C., 50; Hinton v. Pritchard, 102 N. C., 94, 8 S. E., 887; Averitt v. Elliott, 109 N. C., 560, 138 S. E., 785; Talbert v. Becton, 111 N. C., 543, 16 S. E., 322; Alley v. Howell, 141 N. C., 113, 53 S. E., 821 In tbe case of Mobley v. Griffin, 104 N. C., 112, 10 S. E., 142, Avery, 'J., said: “Both under tbe Code pleadings and tbe more formal rules applicable in tbe trial of ejectment it is competent, under a general denial or general issue, to sbow that any deed offered by a party as evidence of title is void,” for among other causes, “fraud in tbe factum.” Lineberger v. Tidwell, 104 N. C., 506, 10 S. E., 758; Helms v. Green, 105 N. C., 251, 11 S. E., 470; Gilchrist v. Middleton, 107 N. C., 663, 12 S. E., 85; Herndon v. Ins. Co., 110 N. C., 279, 14 S. E., 742; Alley v. Howell, 141 N. C., 113, 53 S. E., 821; Higgins v. Higgins, 212 N. C., 219, 193 S. E., 159. But in tbe case Alley v. Howell, supra, Clark, C. J., pertinently said: “Fraud (not in tbe factum), undue influence, or want of consideration are matters foreign to an allegation of legal title, and cannot be put in evidence unless tbe defendant bas notice by appropriate allegations in tbe complaint that be may come to trial prepared to defend an attack on those grounds. This bas been tbe settled practice and rests upon tbe principle of fair play, that those matters should be contested at tbe trial which come within tbe scope of tbe allegations. It is true, tbe averments here omitted were matters of equitable jurisdiction under tbe former system of pleading, but it is not on that ground that they are required to be pleaded, but because when tbe plaintiff merely alleges, as here, that they are ‘owners and entitled to tbe possession’ the defendant bas notice only that bis legal title is assailed. For exactly tbe same reason an equitable defense cannot be proven unless set up in tbe answer.” See also Averitt v. Elliott, supra. Applying these principles, and under liberal interpretation, tbe allegations of tbe further defense sufficiently allege an equitable defense to admit of proof. If, however, plaintiff wishes tbe allegations therein to be made more specific, or if it be found expedient to make L. L. McClees a party, these, or either, may be addressed to tbe consideration of tbe court below. Tbe judgment below is Reversed.