#### J. L. RICHARDSON v. THOMAS PEARL RICHARDSON.

(Filed 31 October, 1934.)

1. Heeds and Conveyances C f — Plaintiff held not a party to contract in deed for support of grantor and could not maintain action against grantee.

A husband and wife divided their lands between their two sons by separate deeds, each providing that the grantee therein should pay one-half the costs of maintenance of the grantors for life and one-half the costs of their funeral expenses. After the death of the grantors one of the grantees brought action against the other, alleging that defendant had failed to pay one-half the costs of maintenance and care of the grantors, and had failed to pay one-half their funeral expenses, and that plaintiff had paid more than one-half the costs thereof, and sought to recover the amount by which plaintiff had contributed beyond his share: Held, plaintiff could not maintain the action, and defendant’s demurrer was properly sustained.

2. Pleadings D e—

A demurrer admits the truth of facts properly alleged in the complaint, but not inferences or conclusions of law therein.

Appeal by plaintiff from Warlich, J., at May Term, 1934, of Davie.

Affirmed.

This is a civil action, instituted by tbe plaintiff against tbe defendant for the recovery of $651.00 alleged to be due by the defendant to the plaintiff for defendant’s part of maintenance, care, support, and upkeep of bis father, on tbe ground of an implied contract by reason of tbe acceptance of a deed by tbe defendant from bis mother in which be, tbe defendant, was charged jointly with tbe plaintiff for the support of bis aged father.

Mary Richardson bad a husband, J. W. Richardson, and two sons, tbe plaintiff and tbe defendant in this action. She also' bad about one *315hundred and fifty acres of land in Davie County, North. Carolina. On 3 April, 1926, Mary Eichardson and her husband, J. W. Eichardson, joining in the deeds, divided the land between their two sons, the plaintiff and defendant in this action, and conveyed to them by separate deeds the land in fee simple. The deeds were duly recorded. (1) Fifty acres was conveyed to J. L. Eichardson, the plaintiff, with this provision: “Provided, that J. L. Eichardson is to pay one-half of expenses of support and funeral expenses of J. W. Eichardson and wife, Mary Eichard-son.” (2) One hundred acres was conveyed to Thomas Pearl Eichard-son, the defendant, with this provision: “Provided, that Thomas Pearl Eichardson is to pay one-half of expenses of support and funeral expenses of J. W. Eichardson and wife, Mary Eichardson.” Mary Eich-ardson died on 6 May, 1928, and J. W. Eichardson on 17 June, 1933.

The complaint alleges, in part: “That after the death of Mary Eich-ardson, the plaintiff and the defendant, in compliance with the provision made in said deeds of conveyance, began the joint support and maintenance of their father, J. W. Eichardson, then in' his 80th year, and feeble in mind and body. That the joint support of their father continued for approximately two years, until the defendant Thomas Pearl Eichardson became intoxicated and ran his father away from home and refused to further contribute to his support, care, and maintenance, and for a period of two and one-half years immediately preceding the death of J. W. Eichardson the plaintiff J. L. Eichardson had the sole support, maintenance, and care of his father for the said two- .and-one-half-year period until his death on 17 June, 1933, at the age of eighty-four years; and for the past two and one-half years prior to the death of J. "W\ Eichardson the defendant Thomas Pearl Eichardson has failed, neglected, and refused to contribute anything for the maintenance, care, upkeep, and support of his father. That during the last two and one-half years the said J. "W. Eichardson was very feeble, requiring constant care and attention, and that on 30 May, 1933, he fell .and broke his pelvis bone, and from then until his death on 17 June, 1933, was totally helpless and unable to care for himself at all. . . . That plaintiff’s services for the maintenance, care, upkeep, and attention to J. W. Eichardson during the last two and one-half years of his illness was reasonably worth the sum of twelve hundred dollars ($1,200), .and that plaintiff is entitled to recover one-half of the sum of $1,200.00, to wit, six hundred dollars ($600.00) from the defendant for the maintenance, care, upkeep, support, and attention for the said J. W. Eich-ardson, and that the funeral expenses amounted to the sum of $90.00, and the doctor’s bill amounted to the sum of $12.00, making a total of $102.00, which the plaintiff has paid, and of which sum the plaintiff is •entitled to recover of the defendant the sum of $51.00.

*316“Tbat tbe defendant is justly due tbe plaintiff for bis part of tbe maintenance, care, support, and upkeep of bis father, together with the funeral expenses, in tbe sum of six hundred and fifty-one dollars ($651.00), and that demand has been made'upon tbe defendant for tbe payment of said sum, and that defendant has refused to pay tbe same.

“Wherefore, plaintiff demands judgment tbat be recover of tbe defendant tbe sum of six hundred and fifty-one dollars ($651.00) and tbe costs of this action, and for such other and further relief as plaintiff is entitled to receive.”

Tbe defendant demurred to tbe complaint, as follows: “First. For tbat as appeal’s from tbe complaint and tbe proviso or condition of tbe deed referred to therein, paragraph 5, wherein it is alleged tbat this defendant was to ‘provide or pay one-half of tbe expense of support and funeral expenses of tbe said J. W. Richardson and wife, Mary Richard.son/ the same being sued for by tbe plaintiff herein, is and was an obligation due tbe said J. W. Richardson and wife, Mary Richardson, or their personal representative, and as this defendant is advised, informed, and believes, tbe plaintiff has no right to maintain this action for tbe recovery of any sum alleged to be due thereon, or any part of tbe same.

“Second. For tbat as appears from said complaint, the said J". W. Richardson and wife, Mary Richardson, are both dead, and tbat no administration upon tbe estate of either of them has been granted, and as defendant is advised and believes, and be so alleges, tbe plaintiff has no right, in bis individual capacity, to maintain this action or sue this defendant upon an alleged claim, which, if due at all, would be due J. W. Richardson and Mary Richardson, or their personal representatives.

“Third. For that, as will appear from said complaint, tbe same does not state a cause of action against this defendant. Wherefore, defendant prays tbat this action be dismissed, and for such other relief to which defendant may be entitled.”

The judgment of tbe court below is as follows: “This cause cpming on to be heard before bis Honor, Wilson War lick, judge presiding, upon demurrer filed by tbe defendant, and being beard:

“It is adjudged by the court tbat the demurrer be and the same is hereby sustained upon the ground tbat tbe complaint does not state a cause of action against tbe defendant, and tbat tbe plaintiff has no legal capacity to sue in this action.”

The plaintiff excepted and assigned error to the judgment as signed, and appealed to the Supreme Court.

Hayden Clement for plaintiff.

A. T. Grant for defendant.

*317Per Curiam.

A demurrer admits for the purpose thereof the truth of facts set out in the complaint, and reasonable inferences to be drawn therefrom, but not inferences or conclusions of law therein. The judge of the court below sustained the demurrer on the ground “that the complaint does not state a cause of action against the defendant, and that the plaintiff has no legal capacity to sue in this action.” The remedy of plaintiff cannot be granted in the present action.

The judgment of the court below is

Affirmed.