4. The assignment of such an infected security to a purchaser carries with it the debt it represents, and the assignee will be entitled to it if necessary. ( Byre v. Cooper, 2 Murph., 282; Moore v. Hobbs, 79 N.C. 535; Boyden v. Achenback, 79 N.C. 539, cited and approved.) CIVIL ACTION, tried before Philips, J., at August Term, 1887, of LENOIR.
Where a suit had already been commenced to recover an amount alleged to be due upon an account, and the defendant set up the statutory bar as a defence, but wrote a letter to the plaintiff's attorney stating that, if he would take five hundred dollars in satisfaction, judgment might go against him at court; Held, that the letter is an admission and assumption of the debt to the specified amount ($500), and operates to remove the bar to the recovery of the same. (Moore v. Hobbs, 79 N.C. 535; Boyden v. Achenbach, Ib., 539; Humble v. Mebane, 89 N.C. 410; Falls v. Sherrill, 2 Dev. Bat., 371; McCurry v. McKesson, 4 Jones, 510, cited and approved). CIVIL ACTION tried at Spring Term, 1883, of ROBESON Superior Court, before MacRae, J.
The exception to the allowance of commissions to the defendant constable in this case is sustained. ( Moore v. Hobbs, 79 N.C. 535; State v. Shirley, 1 Ired., 597, cited and approved.) CIVIL ACTION on a constable's bond, heard upon exceptions to the report of a referee, at Fall Term, 1879, of GUILFORD Superior Court, before McKoy, J.
" (Italics added.) The cardinal requirement of this statute, as emphasized in numerous decisions of this Court, is that the facts constituting a cause of action rather than the conclusions of the pleader must be set forth in the complaint so as to disclose the issuable facts determinative of the plaintiff's right to relief. Shives v. Sample, 238 N.C. 724, 79 S.E.2d 193; Griggs v. Griggs, 213 N.C. 624, 197 S.E. 165; Gillis v. Transit Corp., 193 N.C. 346, 137 S.E. 153; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946; Moore v. Hobbs, 79 N.C. 535. It is hornbook law that on a demurrer a pleading will be liberally construed with a view to substantial justice between the parties giving the pleader the benefit of every reasonable intendment in his favor; and a demurrer admits, for the purpose of testing the legal sufficiency of the pleading, the truth of factual averments well stated and relevant inferences of fact reasonably deducible therefrom, but legal inferences and conclusions of the pleader will be disregarded. 3 Strong, N.C. Index, Pleadings, 12.
When a complaint alleges defendant is indebted to plaintiff in a certain amount and such debt is due, but does not allege in what manner or for what cause defendant became indebted to plaintiff, it is demurrable for failure to state facts sufficient to constitute a cause of action. Moore v. Hobbs, 79 N.C. 535; Griggs v. Griggs, 213 N.C. 624, 627, 197 S.E. 165. "The liability for tort grows lout of the violation of some legal duty by the defendant, not arising out of contract, and the complaint should state facts sufficient to show such legal duty and its violation, resulting in injury to the plaintiff.
" (Italics added.) The cardinal requirement of this statute, as emphasized by numerous authoritative decisions of this Court, is that the facts constituting a cause of action, rather than the conclusions of the pleader, must be set out in the complaint, so as to disclose the issuable facts determinative of the plaintiff's right to relief. Gillis v. Transit Corporation, 193 N.C. 346, 137 S.E. 153; Griggs v. Griggs, 213 N.C. 624, 197 S.E. 165; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946; Moore v. Hobbs, 79 N.C. 535. It is fundamental that on demurrer only facts properly pleaded are to be considered, with legal inferences and conclusions of the pleader to be disregarded.
The plaintiff should allege all the material facts, the ultimate facts which constitute the cause of action — but not the evidence to prove them. McIntosh P. P., 389, sec. 379; Winders v. Hill, 141 N.C. 694, 54 S.E. 440; Sams v. Price, 119 N.C. 572, 26 S.E. 170; Revis v. Asheville, 207 N.C. 237, 176 S.E. 738; Hosiery Mill v. Hosiery Mills, 198 N.C. 596, 152 S.E. 794. With few exceptions, only the facts to which the pertinent legal or equitable principles of law are to be applied are to be stated in the complaint. McIntosh P. P., 388, sec. 379; Moore v. Hobbs, 79 N.C. 535; Webb v. Hicks, 116 N.C. 598, 21 S.E. 672; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946; Crump v. Mims, 64 N.C. 767; Insurance Co. v. Smathers, 211 N.C. 373, 190 S.E. 484; Woodley v. Combs, 210 N.C. 482, 187 S.E. 762; Poovey v. Hickory, 210 N.C. 630, 188 S.E. 78. When a complaint is drawn in accord with the statute and states a cause of action, evidence of the facts alleged is admissible. It does not follow that it is either necessary or proper to allege any and every fact evidence of which will be competent at the hearing.
For a second cause of action plaintiffs allege: "That the defendant H. Battle Griggs is indebted to the plaintiff Herbert C. Griggs in the sum of $500.00, with interest on same from 15 November, 1934; $500.00, with interest from 15 November, 1935; and $500.00, with interest from 15 November, 1936." The second cause of action attempted to be set up in the complaint is equally vulnerable. It is not alleged in what manner or for what cause the defendant H. Battle Griggs is indebted to the plaintiff Herbert C. Griggs. A complaint which merely states that the defendant is indebted to plaintiff, and that the debt is due, is demurrable. McIntosh Prac. Proc., 388-9; Moore v. Hobbs, 79 N.C. 535; Webb v. Hicks, 116 N.C. 598, 21 S.E. 672. If the debt declared on is that referred to in the sixth paragraph of the first cause of action, as evidenced by notes given for the purchase of real estate interests, it is not alleged that the notes were executed by defendant H. Battle Griggs. If it be contended that the debt is for the purchase of the Wadesboro property, it is nowhere so alleged. If the consideration of the alleged debt of H. Battle Griggs be the purchase price of the real estate interests asked to be stricken from the deed in the first cause of action, the pleading falls within the condemnation of Smith v. Land Bank, ante, 343, and Lykes v. Grove, 201 N.C. 254, 159 S.E. 360, as improperly uniting cause of action and seeking inconsistent remedies. The inclusion in the judgment of an order striking out the complaint, because it constituted a material change from the cause of action alleged in a former complaint as to which a demurrer had previously been sustained, becomes
Judgment in claim and deliveryshould be in the alternative: 122 S.E., 503; 106 S.C. 342; 91 S.E., 321; 152 S.C. 448; 150 S.E., 125. Messrs. Williams Henry, for respondent, cite: Fromof verdict: 130 S.C. 521; 126 S.E., 649; 11 C.J., 704; 134 S.C. 10; 131 S.E., 778; 114 S.C. 350; 103 S.E., 589. Usury: 3 S.E., 747; 79 N.C. 535; 79 N.C. 539. January 16, 1934.
The allegation that "more than forty-five thousand dollars is now justly due and owing and has not been paid according to the effect of the same," was but a conclusion of law, and did not apprize the defendant of the fact that the plaintiff had elected to exercise her optional right of acceleration, making the whole debt then due and payable. Chesney v. Chesney, 33 Utah, 503, 94 P. 989, 14 Ann. Cas. 935; Moore v. Hobbs, 79 N.C. 535. In addition to this, the bill, based as it was entirely on the mortgage as given, without any allusion to the plaintiff's optional right of acceleration, or to exercising the same, was notice to the defendant that she was seeking to foreclose the mortgage independently of such right.