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SMITH v. SMITH

No. 172.

107 S.E.2d 530 (1959)

249 N.C. 669

Helen W. SMITH, Petitioner, v. John B. SMITH and Minnie M. Smith, Defendants.

Supreme Court of North Carolina.

March 18, 1959.

Attorney(s) appearing for the Case

Max L. Childers, Henry L. Fowler, Jr., Mount Holly, and Hugh W. Johnston, Gastonia, for plaintiff, appellant.

Ernest R. Warren and Julius T. Sanders, Gastonia, for defendants, appellees.

MOORE, Justice.

Before reaching the main question involved, it is thought advisable to dispose of two preliminary matters.

1. The plaintiff did not file a reply and did not plead as an estoppel the admission of the defendant John B. Smith in his answer in a former suit for alimony, that he and plaintiff owned the locus in quo as tenants by the entireties.

"An estoppel is new matter and must generally be pleaded as a defense, and no advantage...

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