Page Trust Co. v. American National Bank

Brogden, J.

Tbe gist of tbe action instituted by plaintiff is to reform tbe deed in controversy to remove tbe lien of tbe docketed judgments, which it alleges constitutes a cloud upon tbe title.

Tbe judgment creditors allege as a defense to said action, and as a basis for affirmative relief, tbat tbe deed from Eourk, trustee, to Sanders was executed without consideration and in fraud of creditors, and tbat, as a matter of fact, tbe land in controversy still belongs to Thomas E. Cooper and J. C. Eourk, who are insolvent, and tbat this parcel of land constitutes tbe only available assets owned by said insolvents.

Tbe demurrers to tbe cross-action of defendant admit tbe truth of said allegations. It has been repeatedly held by tbis Court tbat “a demurrer to an action admits as true every material fact alleged in tbe answer to tbe same extent and witb tbe same force as a demurrer to a complaint.”

Trust Co. v. Wilson, 182 N. C., 168 ;

Real Estate Co. v. Fowler, 191 N. C., 616 .

Therefore, assuming these allegations to be true, the defendant would have tbe right to have tbe land in controversy subjected to tbe payment of their judgments in accordance witb law.

Murchison v. Williams, 71

*531 N. C., 135;

Bryan v. Dunn, 120 N. C., 36 ;

Eaton v. Doub, 190 N. C., 14 ;

Farrow v. Ins. Co., 192 N. C., 148 .

Moreover, the cross-bill of defendant does not constitute a collateral attack upon the deed. In defining a “direct proceeding,” in Houser v. Bonsal, 149 N. C., p. 57, Hoke, J., said: “That under our present system, where courts are empowered to administer full relief in one and the same action, when all the parties to be affected by the decree are before the court, and a judgment is set up in bar and directly assailed in the proceeding for fraud, this is a direct and proper proceeding to determine its validity.”

So, in this case the plaintiff comes into a court of equity alleging that his deed is defective, and praying for equitable relief for the purpose of reforming it, in order to remove a cloud upon the title. Thereupon, in the same action, the defendant asserts that the deed was given without consideration and in fraud of creditors, the plaintiff having notice thereof.

~We are of the opinion that this is not a collateral attack upon the deed and that the demurrers were properly overruled.

Affirmed.

Stagy, C. J., not sitting.