Jessup v. . Kirby

10 S.E.2d 671, 218 N.C. 776, 1940 N.C. LEXIS 84

• Court: Supreme Court of North Carolina
• Decided: September 18, 1940
• Status: Published

Opinion

Pee Curiam.

Sallie J. Kirby conveyed certain land to plaintiff, who in turn made a deed of trust on same to John H. Hall, Trustee, who advertised same for sale under the deed of trust. The plaintiff brought an action to restrain the sale, alleging that the trustee had notice of his equities against Sallie J. Kirby.

The pleadings will disclose that this is an action to recover damages for breach of covenants of seizin and against encumbrances, incorporated in a deed from the defendants, Sallie J. Kirby and husband, to the plaintiff. The transaction constituting the foundation of plaintiff’s claim is the incorporation of the covenants of seizin and against encumbrances in the deed aforesaid. The subject of his action is the breach of those covenants.

It is contended by plaintiff the defenses and counterclaim asserted by defendants do not comply with the statute, as follows: N. C. Code, 1939 (Michie), sec. 521: “The counterclaim mentioned in this article must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.”

The court below sustained the demurrers of plaintiff. Without going into the controversy in detail, we are of the opinion that the order and judgment of the court below appealed from must be sustained.

Affirmed.