75 S.E. 1102 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE WALKER. *234 Plaintiff brought this action to recover the sum of $1,140, and in his complaint he states his cause of action in three different ways: (1) That defendant's testator took possession of certain land situated in Sanford Township, Moore County (now Lee County), the property of the plaintiff, leased the same to tenants and collected the rents for the use of the plaintiffs, to the amount of $1,140. That said amount has never been paid to plaintiffs, but is now held by defendant for their use. In the next count, if it may be so called, it is alleged, in substantially the same words, that the land of plaintiffs was leased by defendant's testator to tenants, and the rents collected by him, the only difference between the two counts, if there be a difference, being that it is alleged in the second count that the said real estate belonged to plaintiffs and the rents were payable to them, but instead of paying (288) them to plaintiffs, the defendant's testator collected the same to the amount of $1,140 and wrongfully converted them to his own use. The third count alleges, in substance, that defendant's testator wrongfully took possession of the land by his tenants, and unlawfully withheld the same from plaintiffs, a reasonable rental for the land being $1,140.
The defendant demurred upon the ground that while the complaint alleges a wrongful possession of the land by defendant's testator, and demands the rents and damages, it does not describe the premises with sufficient certainty, so that they may be identified by the defendant and he may intelligently answer the complaint.
Plaintiff moved for judgment on what he calls the first and second causes of action. This motion was denied, and properly so, as the complaint states but one cause of action in three several ways. It is all one and the same transaction, and plaintiff seeks, in the end, to recover $1,140, which was received by the defendant, as rent, for his lands. Simpson v. LumberCo.,
But the demurrer is based upon the specific ground that the land is not sufficiently described, and is bad if there is a sufficient description, even if that kind of objection can be taken by demurrer. The land is described as belonging to plaintiffs, and situated in Sanford Township, Lee County, and the same which defendant's testator took into his possession and leased to tenants, and for which he collected the (289) rents in May, 1910. This would seem to be sufficiently definite in an action of this nature. In Whitaker v. Forbes,
We do not think the defendant could well be misled to his prejudice by the description; but if he was uncertain as to the nature of the particular charge against him, he should have moved the court for a more definite and certain statement of the cause of action, under Revisal, sec. 496. Allen v.R. R.,
Again: The demurrer was evidently directed against the last statement in the complaint, which we may, for the sake of argument, call a count, and the court erred in sustaining the demurrer as to that detached portion, as upon the whole complaint it could be seen that a sufficient cause of action was alleged.
A complaint cannot be overthrown by a demurrer unless it is wholly insufficient. It must be fatally defective before it will be rejected as bad. Blackmore v. Winders,
The demurrer should have been overruled. If defendant, when the case goes back, still entertains, in good faith, a doubt as to what land is meant, the court may require a more specific description for his enlightenment. We do not know but that the court should be liberal in requiring more definite statement in a pleading, where the application for a better one is made, not vexatiously, but for the sake of being better informed as to the exact nature of the allegation, so that the party who seeks more light may the better answer the charge. This motion, (291) of course, is addressed to the discretion of the court. Allen v. R. R.,
Without expressly commending or approving the form in which plaintiff has stated his cause of action in the complaint, good though it may be, we are of the opinion that the defendant's remedy, if he had any just ground to ask for a better pleading, was by motion, and not by demurrer.
The case is remanded in order that the parties may proceed as they may be advised. We reverse the judgment sustaining the demurrer, but without prejudice to the right of plaintiff to plead de novo, if so *237 minded, or of defendant to move for a more definite statement of the cause of action, even if it lacks in certainty or fullness. We leave the matter of amendment to the discretion of the judge.
Reversed.
Cited: Tyler v. Lumber Co.,