Walker v. Asheville Building Securities Co.

BeogdeN, J. Tbe defendant filed an answer to tbe original complaint and thereby waived defects appearing upon tbe face of tbe complaint. Lanier v. Pullman, 180 N. C., 406, 105 S. E., 21; Little v. Little, ante, p. 1. Compressing tbe rather meandering allegations of tbe complaint and amended complaint, it appears that tbe plaintiffs, as owners of indebtedness secured by a deed of trust upon an apartment bouse, pray for a foreclosure of tbe deed of trust; and as it is alleged that the property has been fraudulently conveyed by means of void judicial proceedings, [168] it is further prayed that such proceedings be set aside together with the conveyance by the commissioner appointed in said proceeding, and further, that the proceeds of the sale be applied to the payment of the $57,500 note endorsed by the defendant, O’Brien, after deducting all taxes due upon the property. The main relief sought is the foreclosure of the deed of trust and the cancellation of the tax foreclosure proceeding whereby the defendant, O’Brien, acquired title to the property and to set aside the conveyance made to him. As the complaint and amended complaint are interpreted, the court perceives no fatal misjoinder, certainly in the light of decisions, disclosing a trend of liberality in the construction of complaints as against demurrers. The principles of law involved in the case of England v. Garner, 86 N. C., 366, are strikingly similar to those appearing upon the present record. See, also, Chemical Co. v. Floyd, 158 N. C., 455, 74 S. E., 465; Carswell v. Talley, 192 N. C., 37, 133 S. E., 181; Bank v. Mosely, 202 N. C., 836, 162 S. E., 923. Affirmed.