Daniels v. . Fowler

26 S.E. 635, 120 N.C. 14

• Court: Supreme Court of North Carolina
• Decided: February 5, 1897
• Status: Published

Opinion

Clabk, J.:

If the grounds of the complaint “arise out of one and the same transaction, or series of transactions, forming one course of dealing, and all tending to one end; if one connected story can be told of the whole,” it is not multifarious. Ruffin, C. J., in Bedsole v. Monroe, 40 N. C. 313, cited and approved in Youngs. Young. 81 N. C. 91; King v. Farmer, 88 N. C. 22, and in Heggie v. Hill, 95 N. C. 303. To same purport is Hamlin v. Tucker, 72 N. C. 502. That the “main relief may be effectual, the plaintiff may state in his bill any number of conveyances, improperly obtained from him, either at one or more times or respect-ingdifferent kinds of property, and ask to have them all put out of his way, or to have reconveyances; for the several conveyances do not so much constitute distinct subjects of litigation, but are rather so many barricades erected by the defendant to impede the progress of the plaintiff towards his rights.” Bedsole v. Monroe, supra. “Where a general right is claimed, arising out of a series of transactions tending to one end, the plaintiff may join several causes of action against defendants who have distinct and separate interests, in order toa conclusion of the whole matter. ” Young v. Young, supra.

Under the Code, Sec. 267, (1) where the causes of action all arise out of transactions connected with the same sub ject matter, a cause of action in tort can be joined with one to enforce an equitable right; (Benton v. Collins, 118 N. C. 196) and proceedings for enforcement of legal and equitable rights can be joined. Solomon v. Bates, 118 N. C., 811, 316; State v. Smith, 119 N. C., 856. This is au action for the conversion of the entire estate of the ancestor of the infant plaintiff and to set aside sundry transactions, conveyances and judgments, by means of which the wrong has been done, in none of which frauds the ancestor participated. The demurrer for misjoinder was therefore properly overruled. Had it been sustained, the action would not have been dismissed, but divided into several, in the trial of each of which substantially the same evidence w ould have been admitted and the same proposition of law discussed, with great increase of costs and time and with benefit to no one. Pretzfelder v. Insurance Co., 116 N. C., 491. The principle that an action in tort can not be united with one in contract applies only where they arise out of transactions connected with different subject matters. State v. Smith, supra.

“The subject matter of the action” is so well defined by Bliss on Code Pleading, Sec. 126, that we cite it: “The cause of action has been described as being a legal wrong threatened or committed against the complaining party; and the object of the action is to prevent or redress the wrong by obtaining some legal relief. The subject <T the action is neither of these; it is not the wrong which gives the plaintiff the right to ask the interposition of the court, nor is it that which the court is asked to do for him, but it must be a matter or thing, differing both from the wrong and the relief, in regard to which the contrversy has arisen, concerning which tbe wrong has been done; and this is ordinarily the property, or the contract and its subject matter, or other thing involved in the dispute. Thus, in an action to recover the possession of land, the “right” is the right of possession; the “wrong” is the dispossession; the “object” is to gain possession; and the “subject,” or that in regard to which the action is brought, is the land and usually its title. ’5

The personal representative is maae a party defendant. It is immaterial and not ground of demurrer that he is not a plaintiff. Teague v. Downs, 69 N. C., 28; McCormac v. Wiggins, 84 N. C., 279. The creditors are not necessary parties. Carlton v. Byers, 93 N. C., 302; Hancock v. Wooten, 107 N. C., 9. Besides, it is alleged in the complaint that there are no creditors, and the demurrer admits it. ■

The 4th ground of demurrer was also invalid. It misconceives matters stated as inducement as the cause of acción itself. As to the 5th ground of demurrer, there is an allegation that the defendants claim that S. H. Fowler made a deed of trust, that what purports to be such is on record, and that the defendants are holding under it. This is sufficient under Acts, 1893, Ch. 6, to proceed to have the cloud removed, though the plaintiffs are not in possession

The last ground assigned for demurrer, that the complaint is “argumentative, hypothetical, and in alternative,” if it were true, is not cause for demurring, but would justify a motion, before answering or demurring, for a repleader and to make the complaint more explicit.. The Code 261, and cases cited in Clark’s Code, (2d Ed.) p. 207.

No error.