Boone v. Pritchett

130 S.E.2d 288, 259 N.C. 226, 1963 N.C. LEXIS 518

• Court: Supreme Court of North Carolina
• Decided: April 10, 1963
• Status: Published

Opinion

SHARP, J.

Plaintiffs claim the thirty acres, described in paragraph ten of the complaint as the “Julia Walton Home Place,” located in Woodville Township, Bertie County, North Carolina, .as heirs of Dempsey Walton. The source of their alleged claim is the deed dated November 6, 1878, by which Hezekiah Griffin purported to convey fifty-six acres of land, more or less, to Dempsey Walton. The description in that instrument, as set out in paragraph three of the complaint, is quoted verbatim in the facts above. It discloses positively that the deed is void for vagueness -and uncertainty of description. It contains no courses and distances and no reference to any source by which evidence aliunde could identify the land. Holloman v. Davis, 238 N.C. 386, 78 S.E. 2d 143; Carrow v. Davis, 248 N.C. 740, 105 S.E. 2d 60. There is no allegation that the Dempsey Walton land is in Bertie County but, assuming that it is, Bertie County is bounded on one side by the Roanoke River; on the other, by the Chowan River. It has many miles of river road and myriads of gum and red oak trees. If Green Branch is a known stream, the gum on the bank from which to begin an uncertain trek up the branch to another gum, is not.

If it be conceded that Dempsey Walton owned a tract of land containing approximately fifty-six acres somewhere in Bertie County, the .complaint does not justify the inference that the thirty acres which J. A. Pritchett, commissioner, conveyed to L. H. Griffin are a part of it. The demurrer was properly sustained for failure to state a cause of action. Thompson v. Umberger, 221 N.C. 178, 19 S.E. 2d 484.

Since L. S. Mizelle died in 1956, he is not only an improper party but an impossible party. The complaint contains no allegation that J. A. Pritchett, commissioner, was ever in possession of the land or received any rents and profits from it. The court correctly ruled that he was an improper party. However, a misjoinder of one who is not a necessary party is surplusage and not grounds for demurrer. Sullivan v. Field, 118 N.C. 358, 24 S.E. 735; Perry v. Doub, 238 N.C. 233, 77 S.E. 2d 711.

The demurrer admits that all of the plaintiffs listed in the caption of the ciase are heirs at law of Dempsey Walton. It is not now necessary to decide whether that allegation in the complaint amounted to an averment that plaintiffs are all of the heirs of Dempsey Walton. However, it is noted that the plaintiffs’ relationship to him is nowhere specifically alleged; no genealogy connects them with either Dempsey Walton or his children named in the complaint.

The judge of the Superior Court allowed the plaintiffs thirty days in which to amend their complaint if so advised. They may still avail themselves-of this privilege.

Affirmed.