In Re Champion Bank & Trust Co.

178 S.E. 555, 207 N.C. 802, 1935 N.C. LEXIS 274

• Court: Supreme Court of North Carolina
• Decided: February 27, 1935
• Status: Published

Opinion

Stacy, C. J.

The demurrer was sustained on the ground that the facts alleged do not constitute a preference under C. S., 218 (c) (14). Lamb v. Hood, Comr., 205 N. C., 409, 171 S. E., 359. But this is not all the petition alleges. It undoubtedly states a valid claim of commonalty, if not one of preference. Trust Co. v. Hood, Comr., 206 N. C., 268, 173 S. E., 601; Flack v. Hood, Comr., 204 N. C., 337, 168 S. E., 520.

A demurrer goes to the heart of a pleading and challenges the right of the pleader to maintain his position in any view of the matter, admitting for the purpose the truth of the allegations of fact contained therein. Glass Co. v. Hotel Corp., 197 N. C., 10, 147 S. E., 681; Ellis v. Perley, 200 N. C., 403, 157 S. E., 29. Accordingly, it has been said in a number of cases that a pleading is not demurrable, unless wholly insufficient for any cause. Meyer v. Fenner, 196 N. C., 476, 146 S. E., 82. “If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insuffi cient”- — Walker, J., in Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874.

The question of preference is not raised by the demurrer. Hence, it follows that the demurrer should have been overruled.

Eeversed.