Pass v. . Pass

13 S.E. 908, 109 N.C. 484

• Court: Supreme Court of North Carolina
• Decided: September 5, 1891
• Status: Published

Opinion

MermmoN, C. J.:

Very certainly the plaintiff had the right to dismiss his action as to his cause of action, and, in effect, become nonsuit under the present method of civil procedure, unless the defendant pleaded, by hisansw’er, a counter-claim arising out of and involving the plaintiff’s alleged cause of action. This is so, whether the cause of action be legal or equitable, or both legal and equitable, and for the like reasons, that need not be here restated. Whedbee v. Leggett, 92 N. C., 469; Bank v. Stewart, 93 N. C., 402; McNeill v. Lawton, 97 N. C., 16; Bynum v. Powe, Ibid, 374; Gatewood v. Leak, 99 N. C., 363; Manufacturing Co. v. Buxton, 105 N. C., 74.

Then, did the defendant allege a counter-claim growing out of and involving the plaintiff's cause of action? We think not. He alleges, in general terms and effect, that the plaintiff’s cause of action, the note and mortgage, was a fraudulent transaction suggested by the plaintiff and participated in by the plaintiff and himself for the purpose of hindering, delaying and defrauding the defendant’s creditors. In such case the Court will not help either of the parties. The cause of action is thoroughly tainted with fraud, and both parties are particeps criminis. The plaintiff alleges no honest cause of action, and the defendant has no counterclaim, in any aspect of the matter, that the Court will take notice of and enforce. The parties are in pari delicto. Plence, there is no reason why the plaintiff may not abandon his action and go out of Court.

It seems that the defendant may have intended to allege the fraud of the plaintiff, and that he did not intentionally share therein ; that the plaintiff was intelligent and he was ignorant; that he, hence, confided in his brother, who misled, entrapped, deceived and defrauded the defendant for his own gain and advantage; but clearly he did not so allege in terms or effect. If he might have alleged a possible case in which the Court could and would have granted relief to him, he might have asked leave to amend his answer, but he did not do so. lienee, the plaintiff was entitled to have his motion allowed.

There is error. The order appealed from must be reversed and the motion of plaintiff allowed, unless the Court shall, for cause satisfactory to it, allow the defendant to amend his answer.

Error.