"Walker, J.
Plaintiff brought this action to recover tbe sum of $1,140, and in bis complaint be states bis cause of action in three different ways: (1) That defendant’s testator took possession of certain land situated in Sanford Township, Moore County (now Lee County), tbe property of tbe plaintiff, leased tbe same to tenants and collected tbe rents for tbe use of tbe plaintiffs, to tbe amount of $1,140. That said amount has never been paid to plaintiffs, but is now held by defendant for their use. In tbe next count, if it may be so called, it is alleged, in substantially tbe same words, that tbe land of plaintiffs was leased by defendant’s testator to tenants, and tbe rents collected by him, tbe only difference between tbe two counts, if there be a difference, being that it is alleged in tbe second count that tbe
said real estate belonged to plaintiffs and tbe rents were payable to them, but instead of paying them to plaintiffs, the defendant’s testator eolleeted the same to the amount of $1,140 and wrongfully converted them to his own use. The third count alleges, in substance, that defendant’s testator wrongfully took possession of the land by his tenants, and unlawfully withheld the same from plaintiffs, a reasonable rental for the land being $1,140.
The defendant demurred upon the ground that while the complaint alleges a wrongful possession of the land by defendant’s testator, and demands the rents and damages, it does not describe the premises with sufficient certainty, so that they may be identified by the defendant and he may intelligently answer the complaint.
Plaintiff moved for judgment on what he calls the first and second causes of action. This motion was denied, and properly so, as the complaint states but one cause of action in three several ways. It is all one and the same transaction, and plaintiff seeks, in the end, to recover $1,140, which was received by the defendant, as rent, for his lands.
Simpson v. Lumber Co.,
133 N. C., 95. Whether it was received under a contract of lease between plaintiffs and defendant’s testator, or whether the testator entered-upon the land wrongfully and received its rental value, can make no difference. Plaintiffs would be entitled to recover the $1,140 in either view — in the last, because they could waive the tort and recover in contract for money had and received. For the same reason the court should not have sustained the demurrer, as it did. In the first place, the entire complaint showed clearly and beyond any possibility of doubt, and defendant could surely not have been misled thereby, that iffaiwtiffs were seeking to recover the rental value of their land, which had been collected from his tenants by defendant’s testator.
But the demurrer is based upon the specific ground that the land is not sufficiently described, and is bad if there is a sufficient description, even if that kind of objection can be taken by demurrer. The land is described as belonging to plaintiffs, and situated in Sanford Township, Lee County, and the same
wbicb defendant’s testator took into bis possession and leased to tenants, and for wbicb be collected tbe rents in tbe month of Ma.y, 1910. Tbis would seem to be sufficiently definite in an action of tbis nature. In
Whitaker v. Forbes,
68 N. C., 228, it was alleged that tbe defendant unlawfully and forcibly entered upon a tract of land in Enfield, Halifax County, tbe property of plaintiff, and did then and there pull down and destroy a frame bouse of great value, for which damages for tbe tort were prayed. Defendant demurred upon tbe ground “that tbe complaint does not sufficiently describe tbe lot and premises on wbicb tbe trespass were done.” "With reference to tbe ruling by wbicb tbe demurrer was sustained, tbis Court, by
Justice Boy den,
said: “Tbe sole question in tbe cause is as to description of tbe land and premises in an action of trespass. It is not necessary to decide bow tbis would be in an action for tbe recovery of tbe land, but we think tbe authorities are abundant that tbe description is all that is required in an action for trespass
quare clmsum fregit.
It is trae that by tbe rules of pleading in England adopted at Hil. Term, 4
W.
IT., in trespass
quare clmsum fregit
tbe name of tbe close or abuttals must be stated, or a special demurrer will be sustainable; but those rules have never been in force in our State, having been adopted since our separation from tbe mother country.
We
presume that it was an omission to notice tbe fact that these rules were not in force here, wbicb misled tbe defendant in filing a demurrer in this case, as it is clear that previous to tbe adoption of tbis rule it was entirely unnecessary to describe tbe
locus
by name or abuttals. See 1 Lan., 347, note 1, where it is expressly said Tbat.it is sufficient for tbe plaintiff to allege tbe trespass to have been done in a ville or parish only, without mentioning any place, for it is not material; and if tbe plaintiff does mention a place, tbe defendant may justify in another place without a traverse, and tbe plaintiff must ascertain a' place in a new assignment.’ In Buller’s Nisi Prius, page 92, it is,said that, If in trespass
quare clmsum fregit
a man declare generally in such a ville, tbe defendant may plead
liberum tenementum,
and if tbe plaintiff traverse it, it is at bis peril; for the defendant, if be have any part of tbe land in tbe whole town, be
shall justify it there; and therefore the better way for the plaintiff is to make a new assignment.’ . . . If in an action
qucure clausum
the plaintiff set out the abuttals of his close, he must on the trial prove every part thereof. Buller’s Nisi Prius, 98. This makes it hazardous to attempt such description. It has been the unvarying practice in our State for the last fifty years to declare as in the case before us, and in such action it has never been deemed necessary to describe the close by name or by the abuttals.”
We do not think the defendant could well be misled to his prejudice by the description; but if he was uncertain as to the nature of the particular charge against him, he should have moved the court for a more definite and certain statement of the cause of action, under Revisal, sec. 496.
Allen v. R. R.,
120 N. C., 550. The court no doubt would have granted the application, if made in good faith.
Again: The demurrer was evidently directed against the last statement in the complaint, which we may, for the sake of argument, call a count, and the court erred in sustaining the demurrer as to that detached portion, as upon the whole complaint it could be seen that a sufficient cause of action was alleged.
A complaint cannot be overthrown by a demurrer unless it is wholly insufficient. It must be fatally defective before it will be rejected as bad.
Blackmore v. Winders,
144 N. C., 216, and cases cited;
Bank v. Duffie,
156 N. C., 87; 4 Enc: of Pl. and Pr., 74. Plaintiffs have stated a good cause of action for money had and received to their use (27 Oyc., 878) ; and also for its conversion.
Paazlow v. Estate Co.,
104 N. C., 439;
Womble v. Leach,
83 N. C., 86.
The demurrer should have been overruled.
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"Walker, J.
Plaintiff brought this action to recover tbe sum of $1,140, and in bis complaint be states bis cause of action in three different ways: (1) That defendant’s testator took possession of certain land situated in Sanford Township, Moore County (now Lee County), tbe property of tbe plaintiff, leased tbe same to tenants and collected tbe rents for tbe use of tbe plaintiffs, to tbe amount of $1,140. That said amount has never been paid to plaintiffs, but is now held by defendant for their use. In tbe next count, if it may be so called, it is alleged, in substantially tbe same words, that tbe land of plaintiffs was leased by defendant’s testator to tenants, and tbe rents collected by him, tbe only difference between tbe two counts, if there be a difference, being that it is alleged in tbe second count that tbe
said real estate belonged to plaintiffs and tbe rents were payable to them, but instead of paying them to plaintiffs, the defendant’s testator eolleeted the same to the amount of $1,140 and wrongfully converted them to his own use. The third count alleges, in substance, that defendant’s testator wrongfully took possession of the land by his tenants, and unlawfully withheld the same from plaintiffs, a reasonable rental for the land being $1,140.
The defendant demurred upon the ground that while the complaint alleges a wrongful possession of the land by defendant’s testator, and demands the rents and damages, it does not describe the premises with sufficient certainty, so that they may be identified by the defendant and he may intelligently answer the complaint.
Plaintiff moved for judgment on what he calls the first and second causes of action. This motion was denied, and properly so, as the complaint states but one cause of action in three several ways. It is all one and the same transaction, and plaintiff seeks, in the end, to recover $1,140, which was received by the defendant, as rent, for his lands.
Simpson v. Lumber Co.,
133 N. C., 95. Whether it was received under a contract of lease between plaintiffs and defendant’s testator, or whether the testator entered-upon the land wrongfully and received its rental value, can make no difference. Plaintiffs would be entitled to recover the $1,140 in either view — in the last, because they could waive the tort and recover in contract for money had and received. For the same reason the court should not have sustained the demurrer, as it did. In the first place, the entire complaint showed clearly and beyond any possibility of doubt, and defendant could surely not have been misled thereby, that iffaiwtiffs were seeking to recover the rental value of their land, which had been collected from his tenants by defendant’s testator.
But the demurrer is based upon the specific ground that the land is not sufficiently described, and is bad if there is a sufficient description, even if that kind of objection can be taken by demurrer. The land is described as belonging to plaintiffs, and situated in Sanford Township, Lee County, and the same
wbicb defendant’s testator took into bis possession and leased to tenants, and for wbicb be collected tbe rents in tbe month of Ma.y, 1910. Tbis would seem to be sufficiently definite in an action of tbis nature. In
Whitaker v. Forbes,
68 N. C., 228, it was alleged that tbe defendant unlawfully and forcibly entered upon a tract of land in Enfield, Halifax County, tbe property of plaintiff, and did then and there pull down and destroy a frame bouse of great value, for which damages for tbe tort were prayed. Defendant demurred upon tbe ground “that tbe complaint does not sufficiently describe tbe lot and premises on wbicb tbe trespass were done.” "With reference to tbe ruling by wbicb tbe demurrer was sustained, tbis Court, by
Justice Boy den,
said: “Tbe sole question in tbe cause is as to description of tbe land and premises in an action of trespass. It is not necessary to decide bow tbis would be in an action for tbe recovery of tbe land, but we think tbe authorities are abundant that tbe description is all that is required in an action for trespass
quare clmsum fregit.
It is trae that by tbe rules of pleading in England adopted at Hil. Term, 4
W.
IT., in trespass
quare clmsum fregit
tbe name of tbe close or abuttals must be stated, or a special demurrer will be sustainable; but those rules have never been in force in our State, having been adopted since our separation from tbe mother country.
We
presume that it was an omission to notice tbe fact that these rules were not in force here, wbicb misled tbe defendant in filing a demurrer in this case, as it is clear that previous to tbe adoption of tbis rule it was entirely unnecessary to describe tbe
locus
by name or abuttals. See 1 Lan., 347, note 1, where it is expressly said Tbat.it is sufficient for tbe plaintiff to allege tbe trespass to have been done in a ville or parish only, without mentioning any place, for it is not material; and if tbe plaintiff does mention a place, tbe defendant may justify in another place without a traverse, and tbe plaintiff must ascertain a' place in a new assignment.’ In Buller’s Nisi Prius, page 92, it is,said that, If in trespass
quare clmsum fregit
a man declare generally in such a ville, tbe defendant may plead
liberum tenementum,
and if tbe plaintiff traverse it, it is at bis peril; for the defendant, if be have any part of tbe land in tbe whole town, be
shall justify it there; and therefore the better way for the plaintiff is to make a new assignment.’ . . . If in an action
qucure clausum
the plaintiff set out the abuttals of his close, he must on the trial prove every part thereof. Buller’s Nisi Prius, 98. This makes it hazardous to attempt such description. It has been the unvarying practice in our State for the last fifty years to declare as in the case before us, and in such action it has never been deemed necessary to describe the close by name or by the abuttals.”
We do not think the defendant could well be misled to his prejudice by the description; but if he was uncertain as to the nature of the particular charge against him, he should have moved the court for a more definite and certain statement of the cause of action, under Revisal, sec. 496.
Allen v. R. R.,
120 N. C., 550. The court no doubt would have granted the application, if made in good faith.
Again: The demurrer was evidently directed against the last statement in the complaint, which we may, for the sake of argument, call a count, and the court erred in sustaining the demurrer as to that detached portion, as upon the whole complaint it could be seen that a sufficient cause of action was alleged.
A complaint cannot be overthrown by a demurrer unless it is wholly insufficient. It must be fatally defective before it will be rejected as bad.
Blackmore v. Winders,
144 N. C., 216, and cases cited;
Bank v. Duffie,
156 N. C., 87; 4 Enc: of Pl. and Pr., 74. Plaintiffs have stated a good cause of action for money had and received to their use (27 Oyc., 878) ; and also for its conversion.
Paazlow v. Estate Co.,
104 N. C., 439;
Womble v. Leach,
83 N. C., 86.
The demurrer should have been overruled. If defendant, when the case goes back, still entertains, in good faith, a doubt as to what land is meant, the court may require a more specific description for his enlightenment. We do not know but that the court should be liberal in requiring more definite statement in a pleading, where the apiDlication for a better one is made, not vexatiously, but for the sake of being better informed as to the exact nature of the allegation, so that the partjr who seeks
more light may the better answer the charge. This motion, of course, is addressed to the discretion of the court.
Allen v. R. R.,
120 N. C., 548;
Smith v. Summerfield,
108 N. C., 284;
Conley v. R. R.,
109 N. C., 692.
Without expressly commending or approving the form in which plaintiff has stated his cause of action in the complaint, good though it may be, we are of the opinion that the defendant’s remedy, if he had any just ground to ask for a better pleading, was by motion, and not by demurrer.
The case is remanded in order that the parties may proceed as they may be advised. We reverse the judgment sustaining the demurrer, but without prejudice to the right of plaintiff to plead
de novo,
if so minded, or of defendant to move for a more definite statement of the cause of action, even if it lacks in certainty or fullness. We leave the matter of amendment to the discretion of the judge.
Eeversed.