93 N.C. 462 | N.C. | 1885
We are of opinion that the court misapprehended the meaning and effect of the pleadings, and particularly, the effect of the answer.
In the latter, the defendant broadly denies all the material allegations of the complaint, thus raising of fact to be tried by a jury.
The second and third defenses set forth, were not, nor were they intended to be, admissions of the execution of the bond alleged in the complaint, or the effect of it.
They refer to it as the "alleged bond," and the obvious purpose was to insist, first, that if the bond was executed as alleged, then and in that case it would, for the causes stated, be inoperative; and secondly, if the last mentioned defense were not good, then the bond, if it existed, should be treated as a mortgage. *397
Nor could the answer be treated as an admission that the plaintiff paid money for the defendant as alleged.
Although the defense is not very skillfully drawn, it is obvious that the defendant and pleader did not intend by his answer, simply to admit the allegations of the complaint and aver new matter (465) in avoidance.
He had a right to plead several defenses, even though they be inconsistent. The Code, sec. 245; Whedbee v. Reddick,
In the case settled upon the appeal for this Court, it is stated that the defendant said, it seems, ore tenus, that he would admit the execution by him of said paper, and the payment by the plaintiff of said cost, etc. But such admission was not entered on record, nor does it appear that it was accepted or recognized by the court. It is not mentioned in the recitals of fact in the judgment, and, on the contrary, it is recited, that it appearing by the answer of said defendant that the paper writing made a part of the said complaint was executed by said defendant, etc. What was said seems to have been treated as a loose proposition to admit the execution, not accepted or acted upon. Admissions of parties on the trial, and in the presence of the court, are certainly binding, where they are recognized and treated as such — not otherwise.
Further, the court treated the last ground of defense set forth in the answer, as an admission of the sufficiency of the bond alone, as evidence of an agreement in writing to convey a designated tract of land.
For reasons already stated, we think this defense was not an admission at all, but if it should be so treated, it is manifest that the reference to the land in the condition of the bond is so vague and indefinite, as to render it of itself inoperative and void.
The stipulation is for the conveyance to the plaintiff of "one hundred and seven acres of land on Laurel, reference being had to a deed from John Reed to me for a more specific description." This description, without the aid of the deed referred to, is wholly insufficient. That deed was not before the court; indeed, it was contended that no such deed was in existence, in which case, the Court would not — could (466) not — decree specific performance. Capps v. Holt,
There is error, for which the judgment must be reversed, and further proceedings had in the action according to law.
To this end, let this opinion be certified to the Superior Court of the county of Madison. It is so ordered.
Error. Reversed. *398
Cited: Davidson v. Gifford,