Cowles v. . Hardin

Smith, C. J. (After stating the case as above.) It may be that the persons whose lands are alleged to have been sold under the executions and the title to which this proceeding is intended to perfect, ought to be parties, as “ being interested in the subject matter,” in the words and within the meaning of the act, and we are disposed to think they should be. The complaint seems also obnoxious to the objection of duplicity, in associating distinct and independent causes of action in which there must be defendants having no community of interest. N. C. Land Co. v. Beatty, 69 N. C. 329. But the exception is not taken and we will not further consider it. The last assigned cause of demurrer, more properly an objection to the rendition of judgment after the overruling of the demurrer, must be sustained. The proceeding is special and the essential requirements of the statute must be observed. It directs ‘'that the complaint shall be sworn to as is prescribed in other actions.” The Code prescribes how this must be done. §§116,117. The oath must be to the effect that the complaint or other pleading to be verified “ is true to the knowledge of the person making it except as to those matters stated on information and belief and as to those matters he believes it to be true.” The affidavit may be made by an agent or attorney when the action or defence rests “upon a written instrument for the payment of money only” and such instrument is in his hands, or the material allegations lie within his personal knowledge, and in such case the affidavit itself must show the knowledge or the ground of his belief and the reasons *580 why it is not made by the party himself. These requirements are disregarded entirely in the present mode of verification, and the form of the oath is such a departure from that prescribed, that it has already been declared insufficient, Benedict, Hall & Co. v. Hall, 76 N. C. 113, and is not warranted by the decision in Paige v. Price, 78 N. C. 10. It is unnecessary to notice any other points presented in the record. The Court ought not to have proceeded to final judgment until the complaint was sworn to, and in this there is error. The cause will be remanded to the Superior Court where application may be made for amendments and further proceedings had therein according to law. Error. Reversed.