The allegation that there "was and is a breach of defendant's contract of warranty aforesaid" states a good cause of *Page 44 action, but imperfectly, in that it does not allege wherein, as by a specific allegation of ouster, etc. This is a defective statement of a good cause of action, and not a statement of a defective cause of action. The former must be taken advantage of by a demurrer, whereupon in the interest of justice the court may allow the plaintiff to amend, and if it is not demurred to, the defect is waived. The latter, a defective cause of action, could not be cured by an amendment, since an amendment totally changing the nature of the action (Ely v. Early,94 N.C. 1) or admitting a change into a cause of action, when there was none before (Richards v. Smith, 98 N.C. 509; Kron v. Smith,96 N.C. 389; Clendenin v. Turner, ib., 416), cannot be allowed. Clark's Code (2d Ed.), p. 224. A statement of a defective cause of action can be taken advantage of by a motion to dismiss in the Supreme Court, even when not taken below (Rule 27 of this court), or the court may dismiss the action ex mero motu (Hagins v. R. R., 106 N.C. 537; Clark's Code, (2d Ed.), pp. 165, 698); but the insufficient statement of a good cause of action, which is the case here, is cured, if not demurred to. Knowles v. R. R., 102 N.C. 59; Johnson v. Finch,93 N.C. 205. Such defect is cured by answering to the merits. The Code, sec. 242; Bowling v. Burton, 101 N.C. 176; Halstead v. Mullen,93 N.C. 252; Warner v. R. R., 94 N.C. 250. Besides, in the present case the answer is framed on the idea that the averment of (72) ouster was sufficiently stated, and denies the ouster and also pleads the statute of limitations. It is a clear case of aider.Garrett v. Trotter, 65 N.C. 430, cited in Knowles v. R. R., supra;Harris v. Sneeden, 104 N.C. 369; Bonds v. Smith, 106 N.C. 553; Clark's Code (2d Ed.), pp. 172, 173.
According to the evidence, the plaintiffs learned of the defect in their title more than ten years before action was brought, but were not interfered with, and stopped of their own accord. This was not an ouster, and the statute was not set in motion. Within a year before this action was brought they again resumed work, but were at once notified to desist by the owner of the true title, and in obedience to such notice they did desist, and the owner took possession of the property under his superior title. This was an ouster (Hodges v. Latham, 98 N.C. 239), and the statute of limitations then first began to run, and his Honor erred in holding that the cause of action was barred.
The warranty in a conveyance of a right to cut standing timber is a real and not a personal warranty, and the breach arises upon the ouster and not upon the making of the defective warranty. The nonsuit must be set aside.
New Trial. *Page 45 Cited: Wyche v. Ross, 119 N.C. 177; Ladd v. Ladds, 121 N.C. 120;Britton v. Ruffin, 123 N.C. 69; Bank v. Cocke, 127 N.C. 473; Woodcockv. Bostic, 128 N.C. 248; Ravenel v. Ingram, 131 N.C. 550; Finch v.Strickland, 132 N.C. 105; Harrison v. Garrett, ib., 178; Hawkins v.Lumber Co., 139 N.C. 162; Ives v. R. R., 142 N.C. 134; Thomason v. R.R., ib., 324; Blackmore v. Winders, 144 N.C. 216; Woodberry v. King,152 N.C. 680; Bank v. Duffy, 156 N.C. 87; Dockery v. Hamlet, 162 N.C. 122.
(73)