#### SARA C. G. BECHTEL v. JOHN N. BOHANNON and Wife, MARY W. BOHANNON, B. B. BIBLE and His Wife, MARY BIBLE, and KESTER WALTON, Trustee.

(Filed 28 May, 1930.)

1. Pleadings D a — Demurrer should not be sustained where plaintiff is entitled to any relief upon the complaint.

A demurrer *ore tenus*to a complaint should not be sustained if upon the facts alleged in the complaint the plaintiff is entitled to any relief as a matter of law. O. S., 518.

2. Cancellation of Instruments A b — Grantee is not entitled to set aside deed for misrepresentations as to encumbrances made to another.

The purchaser of lands at a foreclosure sale of a mortgage may not have his deed set aside for fraudulent representations as to encumbrances *731
      *made to the mortgagee by the mortgagor,*in *order- to be*entitled to such relief it is required that he allege that such representations were made to him with the intent that he should rely thereon.

3. Heeds and Conveyances O f — Grantor covenanting against encumbrances is estopped from setting up claim against purchaser from grantee.

Where the grantor of lands covenants in his deed that the title is free and clear from encumbrances he is estopped from setting up a prior mortgage lien thereon in his own favor as against his grantee or those claiming under him, and a demurrer to the complaint of the purchaser from the grantee alleging these facts should be overruled, and the plaintiff is entitled to have the grantor permanently restrained from enforcing his lien and have the lien removed as a cloud upon his title in the event of a verdict in his favor. C. S., 1743.

Appeal by plaintiff from *Finley, J.,*at December Term, 1929, of BtjNcombe.

Reversed.

From judgment dismissing tbe action, plaintiff appealed to tbe Supreme Court.

*J oseph W. Little for plaintiff.*

*A. A. Whitener and Louis A. Whitm&r for defendants.*

CoNNOR, J.

After answer filed, setting up defenses to plaintiff’s re- * covery in tbis action on tbe merits, defendants demurred *ore tenus*to tbe complaint, for tbat tbe facts stated therein are not sufficient to constitute a cause of action. Upon tbe bearing, tbe demurrer was sustained. O. S., 518. From judgment dismissing tbe action, plaintiff appealed to tbis Court. If upon tbe facts alleged in tbe complaint, plaintiff is entitled, as a matter of law, to any relief, tbe judgment must be reversed. *S. v. Trust Co.,*192 N. C., 246, 134 S. E., 656.

Plaintiff bas failed to state in ber complaint facts sufficient to constitute a cause of action upon wbicb sbe is entitled to recover of defendant for false and fraudulent representations with respect to tbe title to tbe land described in tbe complaint. Sbe alleges tbat tbe defendant, Jobn N. Bobannon, falsely and fraudulently represented to Jobn A. Beebtel, ber busband, tbat -tbe land described in tbe complaint was free and clear of encumbrances. Tbis representation was made, however, to tbe said Jobn A. Bechtel as an officer and agent of tbe LaFayette Development Company, a corporation, during negotiations between tbe said Jobn N. Bobannon and tbe said Jobn A. Bechtel resulting-in tbe sale and conveyance of tbe said land by tbe defendants, Jobn N. Bobannon and bis wife, and B. B. Bible and bis wife, to tbe LaFayette Development Company. Plaintiff thereafter purchased tbe land at a foreclosure sale made by tbe trustee in a deed of trust by which tbe said LaFayette *732Development Company bad conveyed tbe said land to secure tbe payment of certain indebtedness. Sbe does not allege that any representations were made to ber or to any one acting in ber behalf, by tbe defendants or by any one of tbem witb respect to encumbrances on tbe land, at tbe time sbe purchased tbe same at tbe sale made by tbe trustee. Defendants are not liable to plaintiff because of representations alleged to bave been made to John A. Becbtel while b.e was acting as an officer and agent of tbe LaFayette Development Company, although these representations were thereafter communicated by tbe said John A. Becbtel to tbe plaintiff, prior to ber purchase of tbe land. An essential element of a cause of action for tbe recovery of damages for false and fraudulent representations is that tbe representations alleged to be false and fraudulent were made witb intent that tbe plaintiff shall act upon tbem. *Corley Co. v. Griggs,*192 N. C., 171, 134 S. E., 406. In tbe absence of an allegation that tbe representations were made by tbe defendant witb intent that plaintiff shall act upon tbem, tbe complaint is subject to demurrer on tbe ground that tbe facts stated therein are not sufficient to constitute a cause of action.

However, in ber complaint, plaintiff alleges that in .their deed conveying the land to tbe LaFayette Development Company, tbe defendants, John Bohannon and B. B. Bible, covenanted witb tbe said company, its successors and assigns that tbe said land was then free and clear of encumbrances. At tbe date of said deed, there was on record a deed of trust executed by tbe defendant, B. B. Bible, conveying to tbe defendant, Hester Walton, trustee, an undivided one-balf interest in said land to secure tbe payment of-a note payable to tbe defendant, John N. Bo-hannon. By virtue of said deed of trust, tbe said John N. Bohannon bad a lien on said land for tbe payment of said note. Having covenanted in bis deed to tbe LaFayette Development Company that tbe land conveyed thereby was free and clear of encumbrances, tbe defendant, John N. Bohannon, is estopped as against tbe plaintiff, who is now tbe owner of tbe land, claiming under tbe LaFayette Development Company, to assert that be has a lien on tbe land for tbe payment of bis note. Upon tbe facts alleged in tbe complaint and admitted by tbe demurrer, plaintiff is entitled to judgment that tbe defendant, John N. Bohannon, be permanently enjoined and restrained from causing tbe land to be sold under tbe power of sale contained in tbe deed of trust to tbe defendant, Hester Walton, trustee, or from otherwise causing said land to be sold for tbe payment of bis note. Tbe said deed of trust is a cloud upon tbe title of tbe plaintiff to said land, which sbe is entitled to bave removed. C. S., 1743. *Plotkin v. Bank,*188 N. C., 711, 125 S. E., 541.

“A grantor of land witb full covenants of warranty is estopped to claim any interest in tbe granted premises. And where be bolds a prior *733mortgage on the premises, he can assert no rights as mortgagee against his grantee.” 10 R. C. L., p. 677, and cases cited in the notes.

The judgment sustaining the demurrer and dismissing the action is reversed, to the end that the action may be tried on the issues arising upon the complaint and answer. Whether defendants are entitled to an order, as prayed for in their answer, that John A. Bechtel and the laFayette Development Company be made parties plaintiff in this action is not presented on this appeal. We hold only that there was error in the judgment sustaining the demurrer and dismissing the action. For this error the judgment is

Reversed.