Dillingham v. Kligerman, 235 N.C. 298 (1952)

March 19, 1952 · Supreme Court of North Carolina

235 N.C. 298

SCOTT DILLINGHAM v. MINNIE LEVY KLIGERMAN and Husband, A. J. KLIGERMAN, OSCAR PITTS, ELON SMAWLEY, LAURA L. PENLEY, E. F. VESS, JERRY CALDWELL, WILLIAM C. BRIGHT and ARCHIE L. SURRETT.

(Filed 19 March, 1952.)

1. Vendor and Purchaser § 23—

In an action for specific performance of a contract of sale of real estate or for damages in lieu thereof, demurrer of those defendants other than vendors is properly sustained in the absence of allegation that they have or claim any interest in the land or that they were in anywise obligated to plaintiff, certainly where it appears of record that the contract of the feme vendor, who owned the land, had not been acknowledged.

2. Pleadings § 19c—

The rule that a pleading will be liberally construed upon demurrer does not permit the court to construe into the pleading that which it does not contain. G.S. 1-151.

3. Appeal and Error § 29—

An exception not discussed in appellant’s brief and in support of which no authority is cited, will be deemed abandoned. Buie of Practice in the Supreme Court No. 28.

Appeal by plaintiff from Bennett, Special Judge, December Term,: 1951, of BuNcombe.

Civil action by the plaintiff for specific performance of alleged contract for the sale and purchase of real estate, or for damages in lieu thereof, heard on demurrers ore tenus for failure of the complaint to state facts sufficient to constitute a cause of action.

It appears from the complaint that the action is predicated upon a contract allegedly made between the plaintiff and the defendant Minnie Levy, widow (now Minnie Levy Kligerman), registered in the Public Registry of Buncombe County, by the terms of which it is alleged that the feme defendant Kligerman contracted and agreed to convey to the plaintiff for a named consideration certain real estate therein described. The contract is incorporated in the complaint by reference.

When the case came on for trial, the defendants, who had previously filed answers, demurred ore tenus to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action as to each of the defendants. Following the hearing, the court entered judgment overruling the separate demurrers of the defendants Minnie Levy Kligerman and husband, A. J. Kligerman, but sustaining those of the other defendants, namely: Oscar Pitts, Elon Smawley, Laura L. Penley, E. F. Vess, Jerry Caldwell, William C. Bright and Archie L. Surrett, and as to these defendants canceling the notice of Us pendens filed in the Clerk’s office and dismissing the action.

To so much of tbe judgment as sustains tbe demurrers of Oscar Pitts and tbe other named defendants and as to tbem cancels tbe lis pendens and dismisses tbe action, tbe plaintiff excepted and appealed.

Scott Dillingham, plaintiff, appellant, in propria persona.

Shuford, Hodges & Robinson for defendants Oscar Pitts and Dion Smawley, appellees.

Harvel J. Crawford for other defendants, appellees.

JohnsoN, J.

There is no allegation in tbe complaint that any one of tbe defendants whose demurrers were sustained has or claims any interest in tbe lands referred to in tbe complaint, nor that any one of these defendants is in anywise obligated to tbe plaintiff. It nowhere appears on tbe face of tbe complaint that tbe plaintiff is entitled to relief of any sort against any of these defendants. Besides, it appears upon tbe face of tbe record that there was no acknowledgment or proof of tbe execution of tbe contract by Mrs. Minnie Levy (now Mrs. Minnie Levy ELiger-man), tbe seller who allegedly contracted to convey tbe disputed lands to tbe plaintiff. Therefore, tbe court properly sustained tbe demurrers filed by tbe appellees. As to tbem, tbe complaint was wholly insufficient to allege a cause of action. Tbe statute (G.S. 1-151) which requires liberal construction in favor of tbe pleader, neither requires nor permits tbe court to construe into a pleading that which it does not contain. Jones v. Furniture Co., 222 N.C. 439, 23 S.E. 2d 309; Bank v. Gahagan, 210 N.C. 464, 181 S.E. 580.

Tbe question whether on demurrer sustained tbe action was dismissed prematurely is not presented for decision. This question, if raised by tbe exception to tbe judgment, not being discussed in appellant’s brief nor supported by authority, will be treated as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562 et seq. See also Gray v. Cartwright, 114 N.C. 49, top p. 52, 93 S.E. 432; S. v. Howley, 220 N.C. 113, 16 S.E. 2d 705; Maynard v. Holder, 219 N.C. 470, 14 S.E. 2d 415.

Affirmed.