Ownbey v. . Parkway Properties, Inc.

18 S.E.2d 710, 221 N.C. 27, 1942 N.C. LEXIS 378

• Court: Supreme Court of North Carolina
• Decided: February 25, 1942
• Status: Published

Opinion

Barnhill, J.

This being an action in ejectment it was not necessary for plaintiff to allege either defendant’s source of title or the invalidity of any deed in its chain of title. Should the defendant at the hearing offer the foreclosure deed plaintiff would be privileged to attack it as invalid in law without prior allegation. Ricks v. Brooks, 179 N. C., 204, 102 S. E., 207; Mobley v. Griffin, 104 N. C. 112; Jones v. Cohen, 82 N. C., 75; Fitzgerald v. Shelton, 95 N. C., 519; Higgins v. Higgins, 212 N. C., 219, 193 S. E., 21; Gibbs v. Higgins, 215 N. C., 201. However, he has properly elected to disclose by allegation his purpose to attack and his grounds therefor. As to this defendant has no cause to complain.

Neither C. S., 2589, nor C. S., 437 (3), has any bearing upon the question here presented. Their applicability in determining the sufficiency of the attack by plaintiff upon the foreclosure deed is not now before us for decision. It follows that the cases cited by defendant are likewise not in point.

The complaint states a cause of action in ejectment. That the plaintiff alleges the invalidity of the deed upon which defendant relies as its source of title does not affect this conclusion. The demurrer should have been overruled.

Reversed.