Union Trust Co. v. Wilson
108 S.E. 500
N.C.
1921
Check Treatment
Walker, J.,

after stating the case: It is an established principle, not now open to question, that a demurrer by a defendant admits as true every material fact alleged in the complaint, which is properly pleaded, Crane Co. v. L. & T. Co., 177 N. C., 346; Merrimon v. Paving Co., 142 N. C., 539, and this is equally true of a demurrer to an answer, or other pleading. The demurrer, in this instance, calls to its aid facts stated therein which do not appear on the face of the complaint, and is generally denominated a “speaking demurrer.” In Von Glahn v. DeRossett, 76 N. C., 292, 294, Chief Justice Pearson so characterizes it, in this passage taken from his opinion: “The second ground of demurrer is subject to another objection. It is a ‘speaking demurrer,’ as styled by the books. That is, in order to sustain itself the aid of a fact not appearing upon the complaint is invoked. Whether there be any fund left on hand at the expiration of the charter of the bank is a question of fact that cannot be inquired into upon demurrer, which raises only an issue of law in regard to the cause of action set out in the complaint.” And to like effect is 6 Enc. of PI. & Practice, p. 297, where it is said by the author, citing the authorities: “It is not the office of the demurrer to set out facts; it involves only such facts as are alleged in the pleading demurred to, and raises only questions of law as to the sufficiency of the pleading, which arise upon the face thereof. It is a fundamental rule of pleading that a demurrer will only lie for defects which appear upon the face of the pleading to which it is opposed, and must be decided without evidence aliunde, unless (as said in some cases) by consent of the parties. A speaking demurrer, that is, a demurrer which is founded *169 on matter collateral to tbe pleading against wbicb it is directed, is bad, and as sucb will be overruled. It is also a well settled principle that when a pleading is demurred to resort cannot be had to other pleadings for the purpose of supporting or resisting the demurrer, but the demurrer must prevail or fall by the face of the pleading to which it is directed.” 31 Cyc., 322, holds that “Only facts appearing on the face of the pleading demurred to will be considered on demurrer. New facts cannot be set up by the demurrant as a ground for demurrer. Such a demurrer is called a ‘speaking demurrer/ and should be overruled. So the scope of the demurrer cannot be extended to cover facts not appearing on the face of the pleading demurred to.” Illustrations of a speaking demurrer will be found in the following cases: Express Co. v. Briggs, 57 S. E., 1066; Peake v. Ware, 63 S. E., 581 (131 Ga., 826); L. & N. P. Co. v. Holland, 63 S. E., 898. Some of the other cases in this State are Davison v. Gregory, 132 N. C., 389; Wood v. Kincaid, 144 N. C., 393; Kendall v. Highway Com., 165 N. C., 600; Besseliew v. Brown, 177 N. C., 65. ¥e held in Wood v. Kincaid, supra: “A demurrer is an objection that the pleading against which it is directed is insufficient in law to support the action or defense, and that the demurrant should not, therefore, be required to further plead. It is not its office to set out facts, but it must stand or fall by the facts as alleged in the opposing pleading, and it can raise only questions of law as to their sufficiency. It is a fundamental rule of law that a demurrer will only lie for defects which appear upon the face of the alleged defective pleading, and extraneous or collateral facts stated in the demurrer cannot be considered in deciding upon its validity. . A demurrer averring any fact not stated in the pleading which is attacked, commonly called a ‘speaking demurrer/ is never allowable,” citing 6 Pl. and Pr., 296 et seq.; Von Glahn v. DeRossett, 76 N. C., 292. We also held in Besseliew v. Brown, supra (opinion by Justice Hoke), that “Where the complaint in an action by the receiver of an insolvent corporation against its directors alleges a good cause of action for damages arising from their negligence in managing the corporate affairs, a demurrer may not be aided by allegations of facts not therein appearing, for such would be a speaking ■demurrer, condemned both under the common law and code systems of pleadings.” A good statement of the law on this question will be found in So. Express Co. v. Briggs, supra, where it was said that a speaking demurrer is one that introduces some new fact or averment necessary to support the demurrer, and which does not distinctly appear on the face ■of the pleading against which it is directed. Peale v. Ware, supra, held that a demurrer negativing a fact material to the cause of action is faulty and should be overruled.

*170 If the demurrer in this ease is examined in tbe light of tbe foregoing authorities, it will appear that it clearly comes within the condemnation of the rule we have stated and which has long been a settled one. The first ground of demurrer is untenable, as it does not appear from the complaint and exhibits “that the Harnett County Trust Company is the owner of the notes sued on in this action,” but the contrary appears, the Harnett County Trust Company having parted with its interest, as-alleged in the complaint, and for a valuable consideration, to the plaintiff as trustee for the certificate holders. The second ground of demurrer, in direct violation of the rule, sets up extraneous facts in support of itself, such as are not alleged in the complaint, but are aliunde. It does not appear from the complaint, nor otherwise, except by allegations-of the demurrer, that defendant has brought an action in Franklin County to set aside the notes mentioned in this suit. We have already disposed of the remaining ground of objection, viz., that plaintiff is not an innocent holder. It is alleged in the complaint that he is, and the demurrer, in law, admits it.

The third ground of demurrer is equally untenable, because it states facts not alleged in the complaint, and cannot, therefore, be considered under the rule of the law as to speaking demurrers. ■

The fourth ground of demurrer contains an erroneous statement of fact, as the holders of the certificates are not parties to this action, the plaintiff suing alone, as the trustee of an express trust, and within the meaning of the statute (C. S., 449), the designation “includes a person with whom, or in whose name, a contract is made for the benefit of another.” Wynne v. Heck, 92 N. C., 414; Willey v. Gatling, 70 N. C., 410; Martin v. Mask, 158 N. C., at page 443.

■ The last ground assigned in the demurrer, must be held as invalid, because the demurrer admits, as a fact, the allegation in the complaint that the plaintiff is the holder of the notes, in due course, for value and without notice of any equity or infirmity attaching to them in favor of the defendant, who is the promissor in both notes, and it appears from the complaint, according to the allegations thereof, which are to be taken as admitted by the demurrer (Bank v. Mfg. Co., 176 N. C., 318; Ollis v. Furniture Co., 173 N. C., 542) that the plaintiff is not suing as agent, but as a trustee of an express trust, which includes within its meaning, as we have already stated, a person with whom, or in whose name, a contract is made for the benefit of another.

This disposes of all the grounds of demurrer adversely to the defendant, and, accordingly, there was no error in the judgment overruling the same.

Affirmed.