Leatherwood v. . Fulbright , 109 N.C. 683 ( 1891 )

The defendant moved in this Court that the action be dismissed for that the complaint did not set forth facts sufficient to constitute a cause of action. The plaintiff alleges that he is the equitable owner of the land, and demands possession of the same. No facts are set forth in support of this equitable title, except that the plaintiff has a bond from one Rogers to convey the land to him upon the payment of one thousand dollars. There is no allegation that he has paid any part of the purchase-money, or that he has ever been in possession. While it is true that one may recover upon an equitable title in an action in the nature of ejectment (Taylor v.Eatman, 92 N.C. 601), it is nevertheless essential that he should set forth the facts upon which the same is grounded. See rule as stated in Geerv. Geer, ante, 679. There is here nothing but an executory contract with no averment as to payment, and it is plain that no cause of action is stated.

Had the case proceeded to trial upon the merits, and upon evidence sustaining issues embodying the essential circumstances, a motion to dismiss would not be allowed. In that event, the court below, or this Court, would have ordered the pleadings to be amended so as to conform to the facts found. Baker v. Garris, 108 N.C. 227. Such is not the case here, and we think the motion should be allowed.

This renders it unnecessary to notice the ruling of the court (685) upon the insufficiency of the description in the bond for title. The attention of counsel, however, is directed to the case ofPerry v. Scott, ante, 374.

Dismissed.