Pearson v. McKenney ( 1969 )

MoERis, J.

The order entered by the court from which petitioners appealed stated that the demurrer to the petition was sustained for the following reasons:

“1. The petition of the petitioners is not drawn in conform-anee with the mandatory North Carolina Statutes, i.e., Chapters 1 and 46, in that,

(a) The adopted proceedings are in contravention of GS 46-1, requiring-that the proceedings be initiated as a Special Proceeding by the petitioners requesting an independent division of the subject premises in conformance with a report of Commissioners and subject to review of the Clerk of Superior Court and this Court.

(b) Commissioners to effect a division of the land were not timely appointed in conformance with GS 46-7 so as to insure a division of the said land by disinterested persons.

(c) Partition of subject premises was not made in conformance with G.S. 46-10 in that petitioners had previously submitted a map as a portion of their pleadings and that no independent map reflecting an equitable division was made in conformance with GS 46-18, but was dependent upon the pleadings of the petitioners.

2. The petition of the petitioners defectively states a good cause of action and is therefore subject to demurrer pursuant to GS 1-127(6) in that it fails to comply in all respects with the mandatory requirements of the statutory remedy afforded to the petitioners in that the petition does not accord to the Clerk of the Superior Court the discretionary power and authority vested in him and insofar as the same relates to the determination of the respective interests of the tenants in common and the appointment of disinterested commissioners and rendering of an adequate report reviewable by this Court.”

To these reasons petitioners specifically except. The exceptions are well taken.

The office of a demurrer is to determine the legal sufficiency of the pleadings. 1 McIntosh, N.C. Practice 2d, § 1181. The demurrer filed by respondents states as a cause for demurrer: “That the petition of the petitioners does not state facts sufficient to constitute a cause of action against the respondents in that the petitioners’ cause of action and specific remedy are solely and exclusively provided for and established by Chapter 46 of the North Carolina General Statutes relating to the partitioning of real property, either by sale or in kind, and establishing the procedures therefor; that such remedy and procedure are statutory in nature and the petitioners have not proceeded in accordance with the requirements of the aforementioned Chapter of the General Statutes” and further {hat petitioners have failed to place the matter in a proper fashion before the Clerk for consideration.

G.S. 1-127 provides that “[t]he defendant may demur to the complaint when it appears upon the face thereof, either that: ... 6. The complaint does not state facts sufficient to constitute a cause of action.” (Emphasis added.)

Both the demurrer and the order sustaining it clearly indicate that respondents are primarily objecting to procedures in the partitioning proceeding after all the pleadings were filed. This, of course, is not the function of a demurrer. If respondents contend that the Clerk failed to appoint impartial commissioners, their remedy is not by demurrer. They seem to contend in their brief and argument that the division by the commissioners was not predicated upon “disinterest” because the petition when filed had a map attached thereto showing a division contemplated by the owner of the land among her children and this “preconceived map” submitted as a portion of the pleadings contravenes G.S. 46-10 requiring a meeting of commissioners to effect an independent division. If respondents objected to the map attached to the petition, it would appear that a motion to strike would have been indicated. Certainly, making the map a part of the petition is not a fatal defect in the petition making it subject to demurrer.

It appears that the court also based its order sustaining the demurrer on the ground that the petition defectively states a good cause of action.

G.S. 46-1 provides that partition of real property under Chapter 46 of the General Statutes shall be by special proceeding. “The petition is in the ordinary form of a complaint in a civil action, and should allege that the plaintiffs and defendants are tenants in common of the land, which should be described, and the interest of each party should be stated; that the plaintiffs desire to hold their interests in severalty, and that they are entitled to partition for that purpose.” 2 McIntosh, N.C. Practice 2d, § 2394.

The petition here meets all of the requirements. We do not find wherein it “defectively” states a good cause of action.

However, even if we should so find, respondents’ demurrer would have come too late. There is a marked difference between the statement of a defective cause of action and a defective statement of a good cause of action. In the former, the defect goes to the substance of the cause and not to the form of the statement. It is not an enforceable cause of action, regardless of how expertly stated it may be. Here demurrer will lie at any time before final judgment. Jenkins v. Fields, 240 N.C. 776, 83 S.E. 2d 908.

Plowever, if there is an enforceable cause of action but it is stated in general terms, or lacking in some material allegation, it constitutes a defective statement of good cause of action. “That is, if the defect goes to the form of the statement and not to the substance of the cause, it is a defective statement of a good cause. (Citations omitted.)” Davis v. Rhodes, 231 N.C. 71, 56 S.E. 2d 43.

“A demurrer to a defective statement of a good cause of action comes too late after answer. The defendant, by answering to the merits, waives the defect which is not fatal but may be cured by amendment.” Davis v. Rhodes, supra; Graves v. Barrett, 126 N.C. 267, 35 S.E. 539. Here demurrer was interposed not only after answer, but after several hearings had been had and orders entered, commissioners appointed, without objection, and their report filed and confirmed, without objection.

The same rules respecting demurrers are applicable to pleadings in partitioning proceedings as are applicable to pleadings in any other civil action. Graves v. Barrett, supra; Coats v. Williams, 261 N.C. 692, 136 S.E. 2d 113.

For the reasons stated herein, the demurrer should have been overruled.

Reversed.

Campbell and BROCK, JJ., concur.