Godwin v. . Gardner , 182 N.C. 97 ( 1921 )

Civil action, founded on contract and growing out of a certain promissory note and mortgage executed by the defendant and delivered to the plaintiff on 19 June, 1915. As an ancillary remedy, plaintiff seized the mortgaged property and took same into his possession under a writ of claim and delivery at the time of issuing summons. Jenkins Boyette subsequently intervened and claimed title to said property by virtue of a prior mortgage, antedating that of the plaintiff's. Upon the execution of a bond, the property was turned over to the interveners.

The defendant filed no answer, but the interveners replied and set up, as an affirmative defense, that since the institution of this action the defendant had been adjudged a bankrupt, and, upon order of the Federal Court, the mortgaged property had been turned over to the trustee in bankruptcy. It was further alleged, in bar of the plaintiff's right to recover, that all the assets of the defendant, J. D. Gardner, had been administered in said court (98) — the plaintiff and other creditors being paid their pro rata part, according to their respective priorities — and that the defendant had been duly granted his full discharge by the bankrupt court.

Upon motion, there was a judgment as of nonsuit entered on the pleadings. Plaintiff appealed. While it is stated in the record that a judgment of nonsuit was entered on the pleadings, we will assume that the action was dismissed on a demurrer ore tenus. But, in either view, the judgment was erroneous.

Matters set up in defense, or as a bar to the plaintiff's suit, and requiring proof, may not be considered upon a demurrer. Wood v. Kincaid,144 N.C. 393.

A good cause of action is stated in the complaint; hence, the judgment of the Superior Court must be set aside and the parties will proceed as they may be advised. The other questions discussed in plaintiff's brief are not before us for decision.

Reversed.

Cited: Cherry v. R. R., 185 N.C. 93; Real Estate v. Fowler, 191 N.C. 618;Bolick v. Charlotte, 191 N.C. 678.

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