#### O. D. BARBER v. C. C. EDWARDS and C. V. CHURCHILL.

(Filed 20 December, 1940.)

1. Pleadings § 10—

When the answer sets up as a counterclaim a judgment against plaintiff which had been purchased by defendant, but fails to allege that defendant was the owner of the judgment at the time of the institution of the action, plaintiff’s demurrer *ore tenus*to the answer will be sustained, even in the Supreme Court on appeal, since it is required that a counterclaim not arising out of plaintiff’s claim must be one existing at the commencement of the action. C. S., 521 (2).

2. Pleadings § 23—

When a demurrer to the answer is sustained, defendant has the right to amend, if he so elects. C. S., 515, 525.

Appeal by defendant Edwards from *Williams, J.,*at April Term, 1940, of Dueham.

Eemanded.

*Hedriclc & Hall for plaintiff.*

*W. H. Hofler and O. S. Hammond for defendants.*

DeviN, J.

Plaintiff instituted action 16 August, 1939, to recover on a note for $246.00, executed by defendant C. C. Edwards. Defendant Edwards, on 7 September, 1939, answered admitting the execution of the note and his indebtedness thereon to the plaintiff as alleged, but pleaded as a counterclaim a judgment against the plaintiff O. D. Barber in the sum of $1,805.81. Defendant’s allegation with respect to the judgment *732was “that tbe defendant is now tbe owner and bolder of a judgment against tbe plaintiff.” On tbe trial tbe defendant testified be bought tbe judgment 19 May, 1939, but tbe entry on tbe judgment docket showed assignment to defendant Edwards 29 August, 1939. Tbe court held that defendant bad acquired tbe judgment subsequent to tbe institution of tbe action, and that therefore it could not avail him in this action. Peremptory instructions were given tbe jury for tbe amount of tbe note. From verdict and judgment in accord with this ruling, tbe defendant Edwards appealed.

In this Court plaintiff demurred *ore ienus*to tbe counterclaim alleged in tbe answer. By O. S., 521 (2), it is required that a counterclaim not arising out of plaintiff’s claim must be one existing at tbe commencement of tbe action. Tbe action was begun 16 August, 1939. Defendant filed bis answer 7 September, 1939. It speaks as of that date. Tbe allegation therein that be is now tbe owner of tbe judgment against tbe plaintiff fails to state that be was tbe owner of the judgment at tbe time of tbe commencement of tbe action. It is insufficient to show that be bad a right to set up tbe judgment as a counterclaim existing at that time. Tbe demurrer to tbe defendant’s counterclaim must be sustained. *Reynolds v. Smathers,*87 N. C., 24; *Bank v. Northcutt,*169 N. C., 219, 85 S. E., 210; *Cody v. Hovey,*216 N. C., 391, 5 S. E. (2d), 165.

However, tbe defendant, under tbe provisions of C. S., 515, and C. S., 525, has a right to amend bis allegation of set-off or counterclaim if be so elects. *Cody v. Hovey,*217 N. C., 407, 8 S. E. (2d), 479. For that reason tbe cause is remanded to tbe end that be may have opportunity to do so. *Rayburn v. Rayburn, ante,*514. Tbe defendant’s admission of tbe debt set out in tbe complaint would entitle plaintiff to judgment for tbe amount sued for, unless tbe defendant can properly allege and prove a valid set-off or counterclaim existing at tbe time of tbe commencement of tbe action, the burden being upon him to do so.

Bemanded.