#### WINDER C. WOMACK v. A. G. CARTER, Administrator.

(Filed 23 October, 1912.)

1. Pleadings — Several Statements — Same Course — Contracts — Money Had and Received — Contracts—Torts—Waiver.

Tbe complaint in an action to recover a certain sum of money alleged (ft) it was due by reason of' defendant’s taking possession of bis lands, leasing and collecting tbe rents to plaintiff’s use in tbe stated sum, wbicb bad not been paid, but beld by defendant for bis use; (5) that tbe said lands were leased by tbe defendant, tbe rents collected by bim in tbe said amount, wbicb were payable to plaintiff, but wbicb were paid to defendant and collected by bim and wrongfully converted by bim to bis own use; (c) that defendant wrongfully took xiossession of the land by bis tenants and withheld tbe same, a reasonable rental being in the said sum: Held, tbe complaint stated a cause of action in three several ways, tbe rents sought to be recovered arising from the same transaction, there being no difference whether tbe rents were received under a contract of lease between plaintiff and defendant or under defendant’s wrongful entry and bis receiving its rental value; and under tbe last allegation the plaintiff could waive the tort and recover in contract for money bad and received to bis use.

2. Pleadings — Several Statements — Same Cause — Judgments—Demurrer.

When tbe complaint in an action to recover rent alleges, in tbe three several ways, that a certain amount was due the plaintiff, denominating them as several causes of action, so that it clearly appears, beyond any doubt, that tbe amount specified in each so-called cause of action was for tbe same rent, and the plaintiff is entitled to recover on two of bis “causes of action,” or counts, defendant’s demurrer to those causes alone is bad.’

3. Pleadings — Action for Rents — Lands—Description—Definiteness —Motions—Demurrer.

In an action to recover rents for plaintiff’s lands alleged to have been wrongfully in defendant’s possession and collected by the defendant from bis lessees, it is not necessary that tbe lands be described with the particularity required when title is in dispute, or as in an action of trespass, and if tbe defendant bad been uncertain of the nature of the charge against bim, be should have moved the court, in its discretion, for a more definite and certain statement of the cause of action (Revisal, sec. *287496), which would probably be granted, if made in good faith. The description of the lands as belonging to plaintiff, in a certain county, which defendant took into his possession at á specified time, Held, sufficient.

4. Pleadings — Cause of Action — Interpretation — Sufficient as a Whole — Demurrer.

When a cause of action is stated in three several ways, which taken together are sufficient, a demurrer against one of these statements is bad, though taken alone it is insufficient; for a complaint cannot be thus overthrown unless it is wholly insufficient, or fatally defective as a whole.

5. Appeal and Error — Pleadings—Definiteness—Motion—Demurrer —Amendments—Discretion of Court — Practice.

On this appeal from a judgment sustaining a demurrer to the complaint, it being held that the defendant’s remedy was by motion to make the. complaint more definite, the judgment off the Superior Court is reversed without prejudice to the right of the plaintiff to plead de novo, or of the defendant to move for a more definite statement of a cause of action, if so advised, both matters to be addressed to the discretion of the lower court.

Appeal by plaintiff from Peebles, J., at July Term, 1912, of Lee.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.

Hoyle & Hoyle and J. W. Ruarle for plaintiff.

Mclver & Williams for defendant.

"Walker, J.

Plaintiff brought this action to recover tbe sum of $1,140, and in bis complaint be states bis cause of action in three different ways: (1) That defendant’s testator took possession of certain land situated in Sanford Township, Moore County (now Lee County), tbe property of tbe plaintiff, leased tbe same to tenants and collected tbe rents for tbe use of tbe plaintiffs, to tbe amount of $1,140. That said amount has never been paid to plaintiffs, but is now held by defendant for their use. In tbe next count, if it may be so called, it is alleged, in substantially tbe same words, that tbe land of plaintiffs was leased by defendant’s testator to tenants, and tbe rents collected by him, tbe only difference between tbe two counts, if there be a difference, being that it is alleged in tbe second count that tbe *288said real estate belonged to plaintiffs and tbe rents were payable to them, but instead of paying them to plaintiffs, the defendant’s testator eolleeted the same to the amount of $1,140 and wrongfully converted them to his own use. The third count alleges, in substance, that defendant’s testator wrongfully took possession of the land by his tenants, and unlawfully withheld the same from plaintiffs, a reasonable rental for the land being $1,140.

The defendant demurred upon the ground that while the complaint alleges a wrongful possession of the land by defendant’s testator, and demands the rents and damages, it does not describe the premises with sufficient certainty, so that they may be identified by the defendant and he may intelligently answer the complaint.

Plaintiff moved for judgment on what he calls the first and second causes of action. This motion was denied, and properly so, as the complaint states but one cause of action in three several ways. It is all one and the same transaction, and plaintiff seeks, in the end, to recover $1,140, which was received by the defendant, as rent, for his lands. Simpson v. Lumber Co., 133 N. C., 95. Whether it was received under a contract of lease between plaintiffs and defendant’s testator, or whether the testator entered-upon the land wrongfully and received its rental value, can make no difference. Plaintiffs would be entitled to recover the $1,140 in either view — in the last, because they could waive the tort and recover in contract for money had and received. For the same reason the court should not have sustained the demurrer, as it did. In the first place, the entire complaint showed clearly and beyond any possibility of doubt, and defendant could surely not have been misled thereby, that iffaiwtiffs were seeking to recover the rental value of their land, which had been collected from his tenants by defendant’s testator.

But the demurrer is based upon the specific ground that the land is not sufficiently described, and is bad if there is a sufficient description, even if that kind of objection can be taken by demurrer. The land is described as belonging to plaintiffs, and situated in Sanford Township, Lee County, and the same *289wbicb defendant’s testator took into bis possession and leased to tenants, and for wbicb be collected tbe rents in tbe month of Ma.y, 1910. Tbis would seem to be sufficiently definite in an action of tbis nature. In Whitaker v. Forbes, 68 N. C., 228, it was alleged that tbe defendant unlawfully and forcibly entered upon a tract of land in Enfield, Halifax County, tbe property of plaintiff, and did then and there pull down and destroy a frame bouse of great value, for which damages for tbe tort were prayed. Defendant demurred upon tbe ground “that tbe complaint does not sufficiently describe tbe lot and premises on wbicb tbe trespass were done.” "With reference to tbe ruling by wbicb tbe demurrer was sustained, tbis Court, by Justice Boy den, said: “Tbe sole question in tbe cause is as to description of tbe land and premises in an action of trespass. It is not necessary to decide bow tbis would be in an action for tbe recovery of tbe land, but we think tbe authorities are abundant that tbe description is all that is required in an action for trespass quare clmsum fregit. It is trae that by tbe rules of pleading in England adopted at Hil. Term, 4 W. IT., in trespass quare clmsum fregit tbe name of tbe close or abuttals must be stated, or a special demurrer will be sustainable; but those rules have never been in force in our State, having been adopted since our separation from tbe mother country. We presume that it was an omission to notice tbe fact that these rules were not in force here, wbicb misled tbe defendant in filing a demurrer in this case, as it is clear that previous to tbe adoption of tbis rule it was entirely unnecessary to describe tbe locus by name or abuttals. See 1 Lan., 347, note 1, where it is expressly said Tbat.it is sufficient for tbe plaintiff to allege tbe trespass to have been done in a ville or parish only, without mentioning any place, for it is not material; and if tbe plaintiff does mention a place, tbe defendant may justify in another place without a traverse, and tbe plaintiff must ascertain a' place in a new assignment.’ In Buller’s Nisi Prius, page 92, it is,said that, If in trespass quare clmsum fregit a man declare generally in such a ville, tbe defendant may plead liberum tenementum, and if tbe plaintiff traverse it, it is at bis peril; for the defendant, if be have any part of tbe land in tbe whole town, be *290shall justify it there; and therefore the better way for the plaintiff is to make a new assignment.’ . . . If in an action qucure clausum the plaintiff set out the abuttals of his close, he must on the trial prove every part thereof. Buller’s Nisi Prius, 98. This makes it hazardous to attempt such description. It has been the unvarying practice in our State for the last fifty years to declare as in the case before us, and in such action it has never been deemed necessary to describe the close by name or by the abuttals.”

We do not think the defendant could well be misled to his prejudice by the description; but if he was uncertain as to the nature of the particular charge against him, he should have moved the court for a more definite and certain statement of the cause of action, under Revisal, sec. 496. Allen v. R. R., 120 N. C., 550. The court no doubt would have granted the application, if made in good faith.

Again: The demurrer was evidently directed against the last statement in the complaint, which we may, for the sake of argument, call a count, and the court erred in sustaining the demurrer as to that detached portion, as upon the whole complaint it could be seen that a sufficient cause of action was alleged.

A complaint cannot be overthrown by a demurrer unless it is wholly insufficient. It must be fatally defective before it will be rejected as bad. Blackmore v. Winders, 144 N. C., 216, and cases cited; Bank v. Duffie, 156 N. C., 87; 4 Enc: of Pl. and Pr., 74. Plaintiffs have stated a good cause of action for money had and received to their use (27 Oyc., 878) ; and also for its conversion. Paazlow v. Estate Co., 104 N. C., 439; Womble v. Leach, 83 N. C., 86.

The demurrer should have been overruled. If defendant, when the case goes back, still entertains, in good faith, a doubt as to what land is meant, the court may require a more specific description for his enlightenment. We do not know but that the court should be liberal in requiring more definite statement in a pleading, where the apiDlication for a better one is made, not vexatiously, but for the sake of being better informed as to the exact nature of the allegation, so that the partjr who seeks *291more light may the better answer the charge. This motion, of course, is addressed to the discretion of the court. Allen v. R. R., 120 N. C., 548; Smith v. Summerfield, 108 N. C., 284; Conley v. R. R., 109 N. C., 692.

Without expressly commending or approving the form in which plaintiff has stated his cause of action in the complaint, good though it may be, we are of the opinion that the defendant’s remedy, if he had any just ground to ask for a better pleading, was by motion, and not by demurrer.

The case is remanded in order that the parties may proceed as they may be advised. We reverse the judgment sustaining the demurrer, but without prejudice to the right of plaintiff to plead de novo, if so minded, or of defendant to move for a more definite statement of the cause of action, even if it lacks in certainty or fullness. We leave the matter of amendment to the discretion of the judge.

Eeversed.