{
  "id": 8626573,
  "name": "BEN SIMON v. G. H. MASTERS",
  "name_abbreviation": "Simon v. Masters",
  "decision_date": "1926-12-15",
  "docket_number": "",
  "first_page": "731",
  "last_page": "732",
  "citations": [
    {
      "type": "official",
      "cite": "192 N.C. 731"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "191 N. C., 818",
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      "reporter": "N.C.",
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    {
      "cite": "143 N. C., 268",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8657082
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    {
      "cite": "176 N. C., 635",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8657400
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      "case_paths": [
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  "last_updated": "2023-07-14T21:52:38.190415+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "BEN SIMON v. G. H. MASTERS."
    ],
    "opinions": [
      {
        "text": "Adams, J.\nOn 6 February, 1926, tbe plaintiff and tbe defendant entered into a written agreement by tbe terms of wbicb tbe defendant was to sell to tbe plaintiff a parcel of land in the city of Asheville free from all encumbrances except a lien for tbirty-five hundred dollars. Tbe consideration was $13,710,\" and of this sum tbe plaintiff paid $500 upon tbe execution off tbe contract. Tbe plaintiff alleges that after tbe contract was made be discovered that tbe defendant\u2019s title was encumbered by a restrictive covenant that tbe property should not be sold or rented to any person of a designated race for a term of ninety-nine years.- He then brought this suit to recover tbe sum be bad paid on .the purchase price.\nTbe defendant denied tbe material allegations in tbe complaint and by way of a further answer alleged in substance that tbe plaintiff bad failed to comply with his contract and that tbe defendant bad performed all tbe conditions required of him and bad tendered tbe plaintiff a title wbicb was not encumbered and bad demanded payment of tbe remainder due on tbe purchase price.\nNo reply was filed to tbe further defense, wbicb was entitled a counterclaim also, and on 28 June, 1926, tbe clerk of tbe Superior Court gave judgment by default against tbe plaintiff for $13,210 with interest thereon from 6 March, and adjudged that upon tbe payment thereof tbe defendant should execute and deliver to tbe plaintiff a deed to tbe premises as p'rovided\" in tbe contract; also that tbe property be sold in default of such payment.\nUpon learning of tbe judgment tbe plaintiff made a motion to set it aside. Tbe motion was denied by tbe clerk and an appeal was taken to tbe judge wbo vacated tbe clerk\u2019s judgment and declared it void. Tbe defendant excepted and appealed.\nTbe allegations set up in tbe answer do not contain new matter constituting a tecbnical counterclaim, but are intended as a defense to tbe plaintiff\u2019s cause of action, wbicb of itself is a denial of tbe alleged counterclaim. It was, therefore, not necessary for tbe plaintiff to file a reply. C. S., 525 Galloway v. Goolsby, 176 N. C., 635; Tillinghast v. Cotton Mills, 143 N. C., 268. Tbe judgment by default destroyed tbe plaintiff\u2019s cause, root and branch; if it stands the plaintiff is without remedy. Tbe defense is clearly dependent upon tbe plaintiff\u2019s failure to make good bis allegations; if be succeeds tbe defense fails. It is plainly a ease in wbicb issues are raised upon tbe face of tbe pleadings. Tbe clerk\u2019s determination of these issues resulted in an irregular judgment remediable by motion in tbe cause. Finger v. Smith, 191 N. C., 818, 819.\nTbe judgment rendered by Judge Schenclc is\nAffirmed.",
        "type": "majority",
        "author": "Adams, J."
      }
    ],
    "attorneys": [
      "Charles B. McRae for plaintiff.",
      "Z\u00e9b. V. Nettles and Z. W. Hayes for defendant."
    ],
    "corrections": "",
    "head_matter": "BEN SIMON v. G. H. MASTERS.\n(Filed 15 December, 1926.)\n1. Pleadings! \u2014 Answers\u2014Defenses\u2014Counterclaim.\nWhere tbe answer to tbe complaint sets up no new matter but its allegations are entirely in defense, a replication by tbe plaintiff is unnecessary. C. S., 525.\n3. Judgments, Irregular \u2014 Motions in the Cause \u2014 Judgment Set Aside\u2014 Pleadings \u2014 Issues\u2014Counterclaim.\nIn plaintiff\u2019s action to recover damages of tbe defendant for failing to make a sufficient conveyance of bis lands under a contract to do so, and tbe answer sets up a defense wbicb, from its expression, tbe clerk erroneously regarded as a counterclaim, but wbicb raised issues of fact for tbe jury, a judgment of tbe clerk denying relief to plaintiff is irregular, affording a remedy to plaintiff by motion in tbe cause.\nAppeal by defendant from Schench, J., of Buetcombe.\nAffirmed.\nCharles B. McRae for plaintiff.\nZ\u00e9b. V. Nettles and Z. W. Hayes for defendant."
  },
  "file_name": "0731-01",
  "first_page_order": 805,
  "last_page_order": 806
}