¶1 This Court recently held in the case of Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384, that, “On a motion for judgment on the pleadings, the presiding judge should consider the pleadings, and nothing else . . . He should not hear extrinsic evidence, or make findings of fact. ... If he concludes on his consideration of the pleadings that a material issue of fact has been joined between the parties, he should deny the motion in its entirety, and have the issue of fact tried and determined in the way appointed by law before undertaking to adjudicate the rights of the parties.” And this decision was approved and followed in Remsen v. Edwards, ante, 427, where it was again pointed out that, “Issues of fact must be tried by a jury, unless trial by jury is waived. GKS. 1-172.” There, as here, a jury trial was not waived, nor did the parties consent for the trial judge to find the facts.
¶2 Certain facts must be found by a jury before it can be determined whether a fiduciary relationship existed between the plaintiff and the defendant at the time the various transactions were consummated, which would, as a matter of law, raise a presumption of fraud as was the case in Sorrell v. Sorrell, 198 N.C. 460, 152 S.E. 157, and McNeill v. McNeill, 223 N.C. 178, 25 S.E. 2d 615. On the other hand, if it should be found that no fiduciary relationship existed between the parties at the time of *531 tbe execution and delivery of tbe conveyances involved, Gaylord v. Gaylord, 150 N.C. 222, 63 S.E. 1028, and similar cases, would seem applicable.
¶3 Tbe judgment entered below is set aside, and tbe ease is remanded for a new trial to tbe end tbat tbe material issues of fact raised by tbe pleadings may be submitted to a jury for decision. Erichson v. Starling, supra.
¶4 Tbe court also erred in not allowing tbe plaintiff’s motion to strike in toto. Tbe defendant bas tbe right to allege and prove tbat in 1941 tbe plaintiff was in difficult financial circumstances, but tbe matters and things which tbe plaintiff moved to strike are only evidentiary or immaterial to tbe matters at issue.
¶5 Error.