Doe Ex Dem. Gaither v. Gibson
Supreme Court of North Carolina
Ejectment, tried before Mitchell, J., at Eall term 1868 of the Superior Court of Caldwell. This is the case in which a new trial was granted at January term 1868 of this Court.
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Ejectment, tried before Mitchell, J., at Eall term 1868 of the Superior Court of Caldwell. This is the case in which a new trial was granted at January term 1868 of this Court. (Phil. p. 530) The only matter necessary to be stated here is, that at the-commencement of the trial the defendant stated that he had. an equitable defence, and offered to introduce it; viz: such an agreement signed by the plaintiff, for conveying the land in. question, as would entitle him to a decree for specific performance; and thereupon he offered to adopt such practice as the-Code demanded in such cases. TTis…
1Opinion of the CourtPearson, C. J.
Mr. Malone rested his case mainly on the ground, that his Honor erred in not permitting-the defendant (upon his offer before the trial) to rely on the counter claim arising out of the contract of sale, and to allow the pleadings to be so amended, as to let in that defence. He took two grounds, 1st the equity arising from the contract of sale, is a counter-claim, within the meaning of the “ Code of Civil Procedure,” § 100, subd. 2; 2nd, this being an action of ejectment, comes under § 7, sub. 1, which provides that the enactments of the Code shall be applicable to civil actions pending at the…
2Cited by2 opinions
- Doe Ex Dem. Linker v. LongSupreme Court of North Carolina · 1870
- Young v. . GriffithSupreme Court of North Carolina · 1878