CREW
v.
CREW.
No. 162.
Supreme Court of North Carolina.
November 19, 1952.*311 E. R. Tyler, Roxobel, Wade H. Dickens, Scotland Neck, and Eric Norfleet, Jackson, for plaintiff, appellant.
Johnson & Branch, Enfield, Allsbrook & Benton, Roanoke Rapids, and Gay & Midyette, Jackson, for defendant, appellee.
DENNY, Justice.
This Court recently held in the case of Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384, 394, that, "On a motion for judgment on the pleadings, the presiding judge should consider the pleadings, and nothing else. * * * He should not hear extrinsic evidence, or make findings of fact. * * * If he concludes on his consideration of the pleadings that a material issue of fact has been joined between the parties, he should deny the motion in its entirety, and have the issue of fact tried and determined in the way appointed by law before undertaking to adjudicate the rights of the parties." And this decision was approved and followed in Remsen v. Edwards, N.C., 72 S.E.2d 879, 880, where it was again pointed out that, "Issues of fact must be tried by a jury, unless trial by jury is waived. G.S. § 1-172." There, as here, a jury trial was not waived, nor did the parties consent for the trial judge to find the facts.
Certain facts must be found by a jury before it can be determined whether a fiduciary relationship existed between the plaintiff and the defendant at the time the various transactions were consummated, which would, as a matter of law, raise a presumption of fraud as was the case in Sorrell v. Sorrell, 198 N.C. 460, 152 S.E. 157, and McNeill v. McNeill, 223 N.C. 178, 25 S.E.2d 615. On the other hand, if it should be found that no fiduciary relationship existed between the parties at the time of the execution and delivery of the conveyances involved, Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028, and similar cases, would seem applicable.
The judgment entered below is set aside, and the case is remanded for a new trial to the end that the material issues of fact raised by the pleadings may be submitted to a jury for decision. Erickson v. Starling, supra.
The court also erred in not allowing the plaintiff's motion to strike in toto. The defendant has the right to allege and prove that in 1941 the plaintiff was in difficult financial circumstances, but the matters and things which the plaintiff moved to strike are only evidentiary or immaterial to the matters at issue.
Error.