Patuxent Development Co. v. Bearden

Seawell, J. Since tbe defendant made ber motion to strike witbin tbe statutory period ber demand to bave irrelevant and redundant matter stricken from tbe complaint comes bere for review as a matter of right and not of judicial discretion. G. S., 1-153; Herndon v. Massey, 217 N. C., 614, 8 S. E. (2d), 914; Hill v. Stansbury, 221 N. C., 339, 20 S. E. (2d), 308; Patterson v. R. R., 214 N. C., 38, 198 S. E., 364. If tbe matter sought to be deleted is found to be of tbe character described in tbe statute, tbe court has no alternative but to strike it out. It is not only a right of tbe defendant, but one of tbe several statutory aids to code pleading, by which tbe controversy is kept in bounds or confined to tbe real issues. In tbe situation presented by this appeal, it makes little difference whether we give our attention to tbe motion to strike or to tbe demurrer, —discussion comes to tbe same end. If tbe plaintiff has not stated a cause of action in tbe second section of tbe complaint, that part is wholly irrelevant and redundant, and its further presence would confuse tbe issue upon tbe alleged indebtedness, with which it has nothing to do. It will be noted that this part of tbe complaint purports to attack tbe validity of tbe several judgments mentioned on tbe ground of fraud; and that all of these proceedings, until overthrown, stand as authority for tbe several acts of tbe administratrix which are challenged in tbe complaint. "Whatever may be tbe facts beyond tbe complaint, tbe pleading will be of no avail unless it sets up with sufficient particularity facts from which legal fraud arises or, where proof of actual fraud is necessary to relief, specifically alleges tbe fraud — that is, tbe fraudulent intent— and particularizes tbe acts complained of as fraudulent so that tbe court may judge whether they are at least prima facie of that character. Hill v. Snider, 217 N. C., 437, 8 S. E. (2d), 202; National Cash Register Co. v. Townsend, 137 N. C., 652, 50 S. E., 306. Considered as liberally as tbe statute requires, we are of tbe opinion that tbe pleading falls short of precedential standards botb with respect *128 to the allegations of legal fraud, supposing that to be intended, and the still more exacting charges of actual fraud. (a) It is true that an administrator under court appointment acts in a fiduciary capacity in the control, custody and disposition of the property and assets of the estate, and he cannot, through a divided personality, become the purchaser at his own sale to his own profit and the detriment of those for whom he is trustee. But there is no allegation in the complaint that the defendant administratrix did this; only a charge that she “arranged” to have the stock transferred to her; in what way is left to surmise, whether by purchase at her own sale or from another bona fide purchaser and after confirmation. (b) Regarding the allotment of the share of stock to the widow of Stutts as part of her year’s allowance, the complaint goes no further in its particulars than to say plaintiff “arranged” to have it done regardless of its true value; and in regard to the order of sale of insolvent accounts says that the defendant “knew or should have known and with due diligence have ascertained that a large number of said accounts receivable,” allegedly aggregating a large amount, “were solvent and could have and should have been collected in full.” It is true that it is said in a separate paragraph that these transactions were “a fraud upon the court” and “a fraud upon the creditors,” but standing in the connection made and in the absence of a more specific allegation, this general denunciation may be considered as a conclusion of the pleader, 37 C. J. S., pp. 370-371, or a mere “brutum fulmen,” Anderson Cotton Mills v. Mfg. Co., 218 N. C., 560, 11 S. E. (2d), 371. In order to prevail on either of the items (b) under consideration, actual fraud must be present and, of course, alleged and proved under applicable rules. This requires, as above stated, a specific allegation both of the fraudulent intent and of the acts constituting the fraud; Waddell v. Aycock, 195 N. C., 268, 142 S. E., 10. Actual fraud involves corrupt and fraudulent intent, — much more than mere indifference to duty or negligence in its performance, which in the instant case.might find relief by resort to the administration bond. The plaintiff, whether from mere politeness or conscientious restraint we need not inquire, has failed to charge such fraudulent intent or to substitute therefor any euphemism of like import, and the specification, if it may be called such, of particulars of the supposed fraudulent transactions are not sufficient to clearly infer actual fraud or to form the basis for the admission of proof of such fraud. A general denunciation of a course of conduct or a series of transactions as fraudulent which does no more than raise a suspicion of wrongdoing, however grave, is not sufficient to put the defendant to answer or to sustain the pleading upon demurrer. *129 It is to be noted, as stated above, tbat we are considering wbat is virtually an attack made upon the orders and judgments which constitute the authority of the administratrix in the several transactions set forth in the complaint. In view of the conclusion reached we do not find it necessary to discuss the jurisdiction and procedure which may hereafter become matters of importance, and they are not to be considered as foreclosed by want of direct discussion upon this appeal. The demurrer to the “second cause of action” should have been sustained and the matter stricken from the complaint. The judgment to the contrary in the court below is reversed and the cause is remanded for further proceedings and for such action as the parties may be advised to take. Reversed and remanded.