Toler v. French

15 Citing cases

  1. Buchanan v. Smawley

    99 S.E.2d 787 (N.C. 1957)   Cited 6 times

    In this connection "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 deducible therefrom, and also admitted . . .," Stacy, C.J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. See also Andrews v. Oil Co., 204 N.C. 268, 168 S.E. 228; Toler v. French, 213 N.C. 360, 196 S.E. 312; Leary v. Land Bank, 215 N.C. 501, 2 S.E.2d 570, and numerous other decisions to same effect. In the light of this principle it is the established rule that where a general demurrer is filed to a complaint as a whole, if any portion of the pleadings is good and states a cause of action, the demurrer should be overruled. A complaint must be fatally defective before it will be rejected as insufficient.

  2. Jones v. Percy

    237 N.C. 239 (N.C. 1953)   Cited 6 times

    Thereupon the defendant, or party in possession, may attack any link in the chain of title relied on by the party seeking to oust him without prior supporting allegation. Ownbey v. Parkway Properties, Inc., 221 N.C. 27, 18 S.E.2d 710, and cases cited; Toler v. French, 213 N.C. 360, 196 S.E. 312; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26. Under this rule when plaintiff offered the foreclosure deed upon which he relies, the defendants were privileged to attack it as invalid in law without first having pleaded the failure of the trustee to advertise the foreclosure sale as required by law.

  3. Erickson v. Starling

    235 N.C. 643 (N.C. 1952)   Cited 62 times
    Describing trial as the examination of the issues between the parties, for the purpose of determining such issues

    The admission inherent in a demurrer is not absolute. A demurrer admits the truth of the well-pleaded factual allegations in the pleading of the other side for the purpose, and only for the purpose, of enabling the judge to pass on the sufficiency in law of such pleading. In consequence, the conditional admission made by a demurrer forthwith ends if the demurrer is overruled. Kemp v. Funderburk, 224 N.C. 353, 30 S.E.2d 155; Insurance Co. v. Stadiem, 223 N.C. 49, 25 S.E.2d 202; Mallard v. Housing Authority, 221 N.C. 334, 20 S.E.2d 281; Bowen v. Mewborn, 218 N.C. 423, 11 S.E.2d 372; Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316; Vincent v. Powell, 215 N.C. 336, 1 S.E.2d 826; Toler v. French, 213 N.C. 360, 196 S.E. 312; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 445. The statute authorizing demurrers to answers is couched in these words: "The plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute a counterclaim or defense; and he may demur to one or more of such defenses or counterclaims, and reply to the residue.

  4. Smith v. Smith

    34 S.E.2d 148 (N.C. 1945)   Cited 27 times
    In Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460, the North Carolina court upheld a separation deed, whereby a wife surrendered dower and all personal and property rights against her husband because it complied with the statutes of that State.

    "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 deducible therefrom are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law." Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Toler v. French, 213 N.C. 360, 196 S.E. 312; Vincent v. Powell, 215 N.C. 336, 1 S.E.2d 826; Merrell v. Stuart, 220 N.C. 326, 17 S.E.2d 458. It must be noted at the outset that separation agreements between husband and wife have not always been recognized as valid in this State. For instance, in the case of Collins v. Collins, 62 N.C. 153, decided in 1867, in an opinion by Reade, J., the Court unequivocally held that "Articles of Separation between husband and wife, voluntarily entered into by them in contemplation of or after marriage, are against law and public policy, and will not be enforced in this State."

  5. Powell v. Turpin

    224 N.C. 67 (N.C. 1944)   Cited 36 times
    In Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26 (1944), plaintiff sought to have a tax foreclosure sale declared invalid for want of proper service of process.

    The rule which permits collateral attack upon a void judgment whenever it is called to the attention of the court in any proceeding in which it is material to the issue presented is particularly apposite in an ejectment suit in which a party may show that any instrument relied on by his adversary as evidence of title is void and ineffectual to convey title. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 140; Ricks v. Brooks, 179 N.C. 204, 102 S.E. 207; Toler v. French, 213 N.C. 360, 196 S.E. 312; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209; Ownbey v. Parkway Properties, Inc., 221 N.C. 27, 18 S.E.2d 710; Higgins v. Higgins, 212 N.C. 219, 193 S.E. 159. No statute of limitations runs against the plaintiffs' action by reason of the judgment of foreclosure, and laches, if any appeared, is no defense. Harrison v. Hargrove, 109 N.C. 346, 13 S.E. 939; Card v. Finch, supra; Monroe v. Niven, supra.

  6. Mallard v. Housing Authority

    221 N.C. 334 (N.C. 1942)   Cited 22 times
    In Mallard v. Housing Authority, 221 N.C. 334, 20 S.E.2d 281, we held that the Wells and Cox cases were controlling and the amendment to the original law applicable to rural communities was a public use.

    "The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of facts contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted . . ." Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Toler v. French, 213 N.C. 360, 196 S.E. 32; Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Parks v. Princeton, 217 N.C. 361, 8 S.E.2d 217; Merrell v. Stuart, 220 N.C. 326, 17 S.E.2d 458. Hence, considering the sufficiency of a complaint, when tested by demurrer, the inquiry is confined to the allegations contained therein. In the present case, however, the contiguous location of counties comprised within the authority covered by defendant is, in accordance with well settled principle, a fact of which the court will take judicial notice.

  7. Merrell v. Stuart

    17 S.E.2d 458 (N.C. 1941)   Cited 12 times
    In Merrell an agreement with a non-lawyer for investigation and production of evidence in exchange for a percentage of the recovery was held to be champertous and thus void as against public policy.

    See, also, Mfg. Co. v. Bank, 145 N.C. 319, 59 S.E. 72. In the present action, accepting as true the allegations of fact contained in the complaint, and relevant inferences of fact, necessarily deducible therefrom, as we must do in testing by demurrer thereto the sufficiency of the complaint to state a cause of action, Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Toler v. French, 213 N.C. 360, 196 S.E. 32; Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Parks v. Princeton, 217 N.C. 361, 8 S.E.2d 217, this is the case: Plaintiff, a layman, friend and former neighbor of Charley Chandler, knowing that Chandler, formerly a resident of Madison County, North Carolina, and putative father of a "daughter born out of wedlock" more than a quarter of century before, for whom he had agreed to make provision out of his estate, had died in Kentucky, leaving a large estate there which was then claimed by others, who refused to share it with her, and having "some general knowledge" of Chandler's plans and promises in that respect, conferred with defendant, an attorney at law, in regard to a suit by the daughter to recover a share of the estate of Chandler. Whereupon, plaintiff and defendant agreed among themselves that defendant would be the lawyer in the case, and that plaintiff would get up the evidence "required in the preparation of said action for trial," and each would receive a fourth of the re

  8. Thomas v. R. R

    10 S.E.2d 722 (N.C. 1940)   Cited 2 times

    But if plaintiff can recover on any aspect of the facts set up in the complaint, whatever theory may be stressed, the demurrer cannot be sustained. Stroud v. Transportation Co., 213 N.C. 642, 197 S.E. 199; Toler v. French, 213 N.C. 360, 196 S.E. 312; Meyer v. Fenner, 196 N.C. 476, 146 S.E. 82; Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807; Caho v. R. R., 147 N.C. 20, 60 S.E. 894. See, also, Enloe v. Ragle, 195 N.C. 38, 141 S.E. 242. Without intending to pass upon other allegations of the complaint, favorably or unfavorably, we are of the opinion that in section 4 it does set up sufficient facts to justify an inference of negligence and to entitle the plaintiff to make proof thereof, if he can, to the jury. We quote: "4. That the said street, at a point which the spur track was located, for a long period of time had been used, by the public, both in the daytime and in the nighttime, under the continued observation of the defendant, its employees and officials, who knew, and in the exercise of reasonable care and prudence should have known, that the said streets were so continually used; that the defendant, its employees and officers knew, that at such times as boxcars were parked or left standing on the spur track and across the street

  9. Keen v. Parker

    217 N.C. 378 (N.C. 1940)   Cited 46 times
    In Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209, it is stated: "But matters in the nature of an estoppel in pais, whether relied upon affirmatively, or by way of defense, must be pleaded."

    In truth, in controversies as to title, "evidence impeaching an alleged title deed is always as competent as that sustaining it." Mobley v. Griffin, supra. See, also, Higgins v. Higgins, 212 N.C. 219, 193 S.E. 159; Toler v. French, 213 N.C. 360, 196 S.E. 312. But matters in the nature of an estoppel in pais, whether relied upon affirmatively, or by way of defense, must be pleaded. Toler v. French, supra. Hence, in the absence of specific plea, the proof tending to show estoppel by conduct is here unavailing to defendants. 3. It is a well established principle in this jurisdiction that when the grantee in a deed assumes the payment of a debt secured by mortgage or deed of trust on the land conveyed, he thereby becomes the principal debtor, Baber v. Hanie, 163 N.C. 588, 80 S.E. 57, and is estopped to deny that the mortgage or deed of trust is valid.

  10. Moss v. Bowers

    5 S.E.2d 826 (N.C. 1939)   Cited 12 times
    In Moss, the escaped prisoner commandeered a vehicle and traveled some distance to another city where he shot and killed the victim.

    We accept the allegations of this complaint, and the facts therein set up, as true, for the purpose of passing on the demurrer. Ins. Co. v. McCraw, 215 N.C. 105; Toler v. French, 213 N.C. 360, 196 S.E. 32; Andrews v. Oil Co., 204 N.C. 268, 168 S.E. 228; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. As to the factual situation thus appearing, the nearest case in point in our own reports seems to be Sutton v. Williams, 199 N.C. 546, 155 S.E. 160. In that case the sheriff was sued in his official capacity, with the surety on his bond, for having negligently permitted the escape of a prisoner, who, driving an automobile, with the authority and consent of the sheriff, negligently ran into a car driven by the plaintiffs in that case and seriously injured them.