Cherry v. Walker

62 S.E.2d 329, 232 N.C. 725, 1950 N.C. LEXIS 634

• Court: Supreme Court of North Carolina
• Decided: November 29, 1950
• Status: Published

Opinion

DeNNy, J.

The deed involved herein was executed “in consideration of one dollar cash in hand paid together with the further consideration of the support and maintenance of party of first part, by party of second part with any and all medical care necessary for her health and comfort, paid by the party of the second part and to be performed as long as said party of the first part may live.”

In view of the above provisions, the judgment as of nonsuit on the first cause of action is affirmed, on authority of Minor v. Minor, ante, 669, and cited cases.

Under our system of pleading, each cause of action should be stated separately and without reference to any other causes. McIntosh — N. C. Practice and Procedure, Section 433, p. 442. And the allegations contained in one cause of action should not he considered in passing upon a demurrer ore tenus to another cause of action.

In considering the second cause of action herein, the allegations to the effect that the plaintiff is the owner of certain land described in a deed, reference to which is made for a complete description thereof, and that the defendant is in the wrongful possession of the land and refuses to surrender the possession to plaintiff, would seem to be sufficient to withstand a demurrer ore tenus. McIntosh—N. C. Practice and Procedure, Section 382, p. 392; Johnston v. Pate, 83 N.C. 110; Tyson v. Shepherd, 90 N.C. 314.

It might be the part of wisdom for the plaintiff, if so advised, to recast her pleadings, in this cause of action, so as to allege that she reserved a life estate in the premises conveyed to the defendant, and that she is the owner thereof and entitled to the possession of the premises by virtue of such reservation.

Appeal on first cause of action, Affirmed.

Appeal on second cause of action, Reversed.

JOHNSON, J., took no part in the consideration or decision of this case.