Sandlin v. Yancey

Stacy, C. J.

Conceding that the complaint contains no allegation of any valuable equity in “the balance of the said lands,” after the repayment of the purchase price, with interest and costs, except by inference perhaps, to which a trust, if declared, could attach under the principles announced in Peele v. LeRoy, 222 N. C., 123 , 22 S. E. (2d), 244 , and cases there cited, still we think the allegations are broad enough to withstand the demurrer, at least to the extent of calling for an accounting.

It is not contended that the title to the lots heretofore sold could be disturbed, or that plaintiffs equity attaches until after the purchase money, with interest, etc., has been repaid from the sale of lots. Only after this has been done was it agreed that John Yancey should stand seized of “the remaining lands” to the use of all the parties — each to be entitled to one-third interest in the “lands left.”

The complaint is not to be overthrown by demurrer, if in any portion or to any extent, it states facts sufficient to constitute a cause of action.

Cotton Mills v. Mfg. Co., 218 N. C., 560 , 11 S. E. (2d), 550 ;

Pearce v. Privette, 213 N. C., 501 , 196 S. E., 843 . It must be fatally defective before it will be rejected as insufficient.

Blackmore v. Winders, 144 N. C., 212 , 56 S. E., 874 . “Upon examination of a pleading to determine its sufficiency as against a demurrer, its allegations will be liberally construed with a view to substantial justice, C. S., 535, and every reasonable intendment and presumption will be given the pleader, and the demurrer overruled unless the pleading is wholly insufficient” — First headnote, Leach v. Page, 211 N. C., 622 , 191 S. E., 349 .

Yiewing the complaint with the degree of liberality which the' law requires, G. S., 1-151, it appears sufficient to survive the demurrer.

Reversed.