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Selby v. Taylor

Filed: May 4, 1982.

BERNICE SELBY
v.
J. T. TAYLOR AND ZACHARY TAYLOR



Appeal by plaintiff and defendants from Reid, Judge. Order entered 4 February 1981, Superior Court, Hyde County. Heard in the Court of Appeals 18 November 1981.

Martin (Harry C.), Judge. Judges Hedrick and Martin (Robert M.) concur.

Martin

Plaintiff's Appeal

The court, in allowing defendants' Rule 12(b)(6) motion for dismissal, ruled that plaintiff's complaint did not state a cause of action. We disagree. The complaint sufficiently alleges a cause of action for slander of title.

The nature of the action for slander of title is peculiar, being based upon a defamatory attack upon property. It has little in common with the ordinary action for slander. Its gist is the special pecuniary loss sustained by reason of malicious utterances or publications by the slanderer. Three elements are necessary for the maintenance of such a suit, the words must be: (1) False; (2) maliciously published; and (3) result in some special pecuniary loss. These requisites must not only be proved but under the fundamental law of pleading must be averred. (Citations omitted.)

International Visible Systems Corp. v. Remington-Rand, Inc., 65 F.2d 540, 542 (6th Cir. 1933).

This succinct discussion of the cause of action followed Cardon v. McConnell, 120 N.C. 461, 27 S.E. 109 (1897), where Chief Justice Faircloth set out the elements of the action as follows:

Slander of title of property may be committed and published orally or by writing, printing or otherwise, and the gist of the action is the special damage sustained, and unless the plaintiff shows the falsity of the words published, the malicious intent with which they were uttered, and a pecuniary loss or injury to himself, he cannot maintain the action. If the alleged infirmity of the title exists, the action will not lie, however malicious the intent to injure may have been, because no one can be punished in damages for speaking the truth. It is essential to the action that the words be maliciously uttered and with intent to injure, and the burden of proving such malice, express or implied, rests upon the plaintiff. If he can show that the utterances were not made in good faith to assert a real claim of title, or facts and circumstances that warrant such an inference, then malice may be fairly implied.

Id. at 462. See also Whyburn v. Norwood, 47 N.C. App. 310, 267 S.E.2d 374 (1980); Texas Co. v. Holton, 223 N.C. 497, 27 S.E.2d 293 (1943); Conway v. Skelly Oil Co., 54 F.2d 11 (10th Cir. 1931); Davis v. Keen, 142 N.C. 496, 55 S.E. 359 (1906).

Here the complaint alleges that defendants, in a writing, a copy of which was attached to the complaint, advised that Zachary Taylor owned the lands claimed by plaintiff and which were to be sold at public auction. The statement in the paper writing was known by defendants to be false and was made maliciously. The paper writing was read at the sales of the property. As a result, potential buyers, including Weyerhaeuser, were discouraged from bidding, and the sale was chilled. As the result of the chilling of the sale, plaintiff suffered a loss of $20,000.

Clearly plaintiff has alleged a malicious uttering of a slander of his title. Indeed defendants concede this in their argument in their brief on this question. They contend, however, that the plaintiff has not sufficiently alleged special damages. In their argument on their own exceptions 1 and 3, they argue forcefully that the complaint states a cause of ...


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