Wiggins v. . Kirkpatrick , 114 N.C. 298 ( 1894 )

Judgment was rendered in favor of the plaintiff on the pleadings for the reason that the defendants had filed "no demurrer, plea or answer" to the "amended complaint." While the method of pleading adopted in this case is not to be commended to the profession for imitation, it must, under the liberal system inaugurated by The Code, be tolerated at least. The court had ordered "that the plaintiff be allowed to amend his complaint and to reply to the answer of the present defendant, J. M. Kirkpatrick, and to answer his (300) counterclaim." Availing himself of the leave thus granted, the plaintiff proceeded to embody in one paper an amendment to his complaint (not an amended complaint) and a reply and answer to the defendant's counterclaim. If, construing together the original complaint, the answer, the amendment and reply, we find that an issue of fact was fairly raised, it was error to refuse to submit the case to a jury. The production of the note was only prima facie evidence of ownership, and if the presumption of an assignment for value and before maturity was raised by proof of possession it was not irrebuttable. The defendant, after averring in his answer that if the note had been received at all from Nettles, it "was received coupled with and subject to all equities between this defendant and W. M. Nettles," and pleading a counterclaim of two hundred dollars on account of the defective title to a portion of the land that was the consideration of the note, had a right, even upon this inartistically drawn answer, to demand that an issue involving the question whether the purchase was for value and before maturity be submitted to the jury. If the plaintiff took the note subject to the equities of the original obligor it must have been assigned after maturity, and under the liberal rules of pleading now adopted the language must be construed as tantamount to an averment that the transfer was so late as to subject the note in the hands of the assignee to such equitable defenses as would not have been available against a purchaser for value before maturity. Harris v. Sneeden, 104 N.C. 369. In section seven of the amended pleading the plaintiff aided the original answer, if it was defective, by setting up in reply that the portion of it in which the defendant (in paragraph 3) alleged defect of title was "not true, and that the alleged facts in his said answer, called a counterclaim," were "not true," and by thus raising more (301) explicitly the issue whether there was a defect of title and whether that defense was available, under the circumstances, for the defendant.Garrett v. Trotter, 65 N.C. 430; Knowles v. R. R., 102 N.C. 59; Johnsonv. Finch, 93 N.C. 205.

We think that the answer can be fairly interpreted as a denial that the note was assigned for value, and before maturity and was not subject to any equities in favor of the maker, and we are of opinion also that a defect in the title is pleaded with sufficient clearness to be comprehended and to put the plaintiff on notice to prepare for the trial of the issues raised.

The court erred, therefore, in giving judgment for want of an answer, or because "no issue of law or fact was raised by the pleadings." The defendant is entitled to a

New trial.