Parker v. . Horton

Supreme Court of North Carolina

Parker v. . Horton

96 S.E. 904, 176 N.C. 143, 1918 N.C. LEXIS 206

DecidedOctober 2, 1918

StatusPublished

This text of 96 S.E. 904 (Parker v. . Horton) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Parker v. . Horton, 96 S.E. 904, 176 N.C. 143, 1918 N.C. LEXIS 206 (N.C. 1918).

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Opinion

AlleN, J.

This act'on to recover interest before the principal became due cfn be maintained because by the terms of the note the interest is payable annually (Bledsoe v. Nixon, 69 N. C., 91; Scott v. Fisher, 110 N. C., 311), and the jurisdiction of the justice’s court is not defeated by reason of the note being executed for the purchase of land. McPeters v English, 141 N. C., 491.

We have then an action properly constituted, of which the court had jurisd-’ction, and as it was pend:ng before a justice of the peace the parties could, at their election, plead orally or in writing. “If oral, *146 tie substance must be entered by tlie justice on bis docket; if written, tbey must be filed by tlie justice and a reference to them be made on bis docket.” Revisal, sec. 1458.

Tbey have elected to file' written pleadings, and are subject to tlie rule that material allegations in the complaint not denied by the answer “stand admitted” (31 Cyc., 207), and as tlie allegations not denied show the plaintiff to be a purchaser for value of the note, a negotiable instrument, before maturity, and the amount of interest due, the plaintiff was entitled to judgment against the male defendant as upon admissions of the parties unless the matters alleged as a defense are available against the plaintiff. (Bank v. Hatcher, 151 N. C., 359.) And upon this question we would have no difficulty in approving the ruling of the Superior Court but for the allegation in the answer that the plaintiff and W. Gf. Connor sold the land to the defendants; that the note set out in the complaint was given for the purchase money, and that there was a total failure'of title.

If these allegations are true, while the plaintiff, who is under twenty-one years of age, may not be liable upon a warranty, there is an entire failure of consideration, of which the plaintiff had knowledge as she participated in the sale, and she could not recover; and when judgment has been rendered upon the pleadings, we must deal with matters .alleged in defense as if established by evidence. It follows that there is error in allowing the motion for judgment, and this makes it unnecessary to consider the other exceptions of the plaintiff and the defendants.

Reversed.

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AlleN, J.

This act'on to recover interest before the principal became due cfn be maintained because by the terms of the note the interest is payable annually (Bledsoe v. Nixon, 69 N. C., 91; Scott v. Fisher, 110 N. C., 311), and the jurisdiction of the justice’s court is not defeated by reason of the note being executed for the purchase of land. McPeters v English, 141 N. C., 491.

We have then an action properly constituted, of which the court had jurisd-’ction, and as it was pend:ng before a justice of the peace the parties could, at their election, plead orally or in writing. “If oral, *146 tie substance must be entered by tlie justice on bis docket; if written, tbey must be filed by tlie justice and a reference to them be made on bis docket.” Revisal, sec. 1458.

Tbey have elected to file' written pleadings, and are subject to tlie rule that material allegations in the complaint not denied by the answer “stand admitted” (31 Cyc., 207), and as tlie allegations not denied show the plaintiff to be a purchaser for value of the note, a negotiable instrument, before maturity, and the amount of interest due, the plaintiff was entitled to judgment against the male defendant as upon admissions of the parties unless the matters alleged as a defense are available against the plaintiff. (Bank v. Hatcher, 151 N. C., 359.) And upon this question we would have no difficulty in approving the ruling of the Superior Court but for the allegation in the answer that the plaintiff and W. Gf. Connor sold the land to the defendants; that the note set out in the complaint was given for the purchase money, and that there was a total failure'of title.

If these allegations are true, while the plaintiff, who is under twenty-one years of age, may not be liable upon a warranty, there is an entire failure of consideration, of which the plaintiff had knowledge as she participated in the sale, and she could not recover; and when judgment has been rendered upon the pleadings, we must deal with matters .alleged in defense as if established by evidence. It follows that there is error in allowing the motion for judgment, and this makes it unnecessary to consider the other exceptions of the plaintiff and the defendants.

Reversed.

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96 S.E. 904, 176 N.C. 143, 1918 N.C. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-horton-nc-1918.

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