Thompson v. Watkins , 15 N.C. App. 208 ( 1972 )

VAUGHN, Judge.

Appellants assignment of error is that the trial court erred in granting defendants’ motion to dismiss. This Court, in Cassels v. Motor Co., 10 N.C. App. 51, 178 S.E. 2d 12, stated that, “A complaint is sufficient to withstand a motion to dismiss where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and where allegations contained therein are sufficient to give a defendant sufficient notice of the nature and basis of plaintiffs’ claim to enable him to answer and prepare for trial.” See also, Redevelopment Comm. v. Grimes, 277 N.C. 634, 178 S.E. 2d 345; Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161.

The judgment granting defendants’ motion was based largely on the following “finding of fact

“5. Plaintiffs have not alleged and have not moved to amend their complaint to allege that Anna L. Litaker did, in any way or manner, occupy a fiduciary relationship with the plaintiffs; or that by her purchase at foreclosure she practiced a fraud upon the plaintiffs; or that her relationship to the plaintiffs was anything other than that of life tenant to remaindermen; or that less than a full and adequate consideration was paid by Anna L. Litaker for said property.”

The Supreme Court of North Carolina, in Morehead v. Harris, 262 N.C. 330, 137 S.E. 2d 174, stated:

“If a life tenant purchases the property at a sale to satisfy an encumbrance, he cannot hold such property to his exclusive benefit, but will be deemed to have made the purchase for the benefit, of himself and the remainder-man or reversioner. If the life tenant pays more than his proportionate share, he simply becomes a creditor of the estate for that amount. * * *

A life tenant who allows property to be sold to> satisfy taxes or other encumbrance cannot acquire a title adverse to the remainderman or revisioner by purchasing at the sale. * * * ”

See also Farabow v. Perry, 223 N.C. 21, 25 S.E. 2d 173; Creeeh v. Wilder, 212 N.C. 162, 193 S.E. 281; 51 Am. Jur. 2d, Life Tenants and Remaindermen § 280; Webster, Real Estate Law In North Carolina (1971) § 62.

Plaintiffs’ complaint qualifies as “ [a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved. .., ” thereby complying with Rule 8(a) of the North Carolina Rules of Civil Procedure. Plaintiffs have stated a claim upon which relief can be granted and it was error for the trial court to grant defendants’ motion to dismiss.

Reversed.

Judges Morris and Graham concur.