Johnson v. Scarborough

89 S.E.2d 420 (1955)

242 N.C. 681

Nash JOHNSON and wife, Mary Sue Johnson, Emma C. Johnson, Ophelia J. Carlton, Carson Johnson, Fletcher Johnson, Cora Jane Johnson Bostic and husband, Raeford Bostic, Dorothy Johnson Lane and husband, Lester Lane, Maude Johnson Hodges and husband, George Hodges, Maye Johnson Sorrell and husband, J. L. Sorrell, Archie A. McMillan, Individually, and Archie A. McMillan, Guardian for Mary Irene McMillan, Incompetent, Mary Lou Wallace Boney and husband, Johnnie Boney, Lucy Wallace Cookenmaster and husband, Clyde Cookenmaster, v. Virginia J. SCARBOROUGH, Fletcher Wallace and wife, Rena Wallace, and Bessie Wallace Balkcum.

No. 169.

Supreme Court of North Carolina.

October 12, 1955.

*422 Jones, Reed & Griffin, Kinston, for Fletcher Wallace and wife, Rena Wallace, respondents, appellants.

Hubert E. Phillips, Kenansville, and Butler & Butler, Clinton, for petitioners, appellees.

PARKER, Justice.

We are concerned here with a question of proper pleading. The allegations in the further defense for affirmative relief are in reality cross-actions, and a demurrer is the proper procedure to test the question as to whether or not there is a misjoinder of parties and causes. Citizens National Bank of Baltimore v. Angelo, 193 N.C. 576, 137 S.E. 705; Beam v. Wright, 222 N.C. 174, 22 S.E.2d 270.

The respondents have incorporated, what are in reality seven cross-actions, in one further answer. The first is against Nash Johnson to have declared void by reason of his fraud certain instruments and deeds conveying to him and B. D. Johnson respondents' interest in the E. M. Johnson estate. The second is against Nash Johnson for an accounting in respect to rents and profits received by him in the operating of a number of farms of the E. M. Johnson estate by him and B. D. Johnson, and in respect to the sale of timber of the E. M. Johnson estate, which rents and profits, and proceeds from the sale of the timber, he fraudulently converted to his own use. The third is against Nash Johnson and unnamed grantees to have declared void by reason of fraud three deeds; two deeds conveying to Nash Johnson and one deed conveying to these unnamed persons a part, or all, of respondents' interest in the B. D. Johnson estate. The fourth is against the parties to a special proceeding to partition the lands of E. M. *423 Johnson, deceased, instituted in Duplin County in 1948, which partition has been confirmed by the court, to have the special proceeding declared void so far as it adversely affects respondents' interests. The fifth is for an accounting against Ophelia J. Carlton, administratrix of the estate of B. D. Johnson, deceased, and against Nash Johnson, administrator of the same estate, for rents and profits received belonging to the estate, and for the sale of at least $200,000 of timber belonging to the estate. The sixth is against J. R. Croom for an accounting as a partner of E. M. Johnson in certain real property. The seventh is against J. T. Taylor, Jr., for an accounting on the ground that he purchased Croom's interest in the lands owned by Croom and E. M. Johnson, and collected rents and profits from the real property.

In the third cause of action the grantees in the third deed are not named in respondents' answer, but they alleged that the deed bears the date of 11 April 1951, and is recorded in Book 475, page 316, in the Office of the Register of Deeds for Duplin County. In the demurrer it appears that the grantees in this deed are Rebecca Wilson for life, with remainder in fee to V. D. Wilson. The answer alleges Nash Johnson was a "co-grantor" in this deed.

It is obvious that the seven crossactions do not affect all the parties to the cross-actions. The facts alleged in these cross-actions do not constitute a connected series of transactions connected with the same subject of action so as to invoke the rule laid down in Branch Banking & Trust Co. v. Pierce, 195 N.C. 717, 143 S.E. 524; Barkley v. McClung Realty Co., 211 N.C. 540, 191 S.E. 3; Leach v. Page, 211 N. C. 622, 191 S.E. 349; Pressley v. Great Atlantic & Pacific Tea Co., 226 N.C. 518, 39 S.E.2d 382; Erickson v. Starling, 233 N.C. 539, 64 S.E.2d 832. The seven crossactions in the further answer are bad as against a demurrer. Citizens National Bank of Baltimore v. Angelo, supra; Atkins v. Steed, 208 N.C. 245, 179 S.E. 889; Holland v. Whittington, 215 N.C. 330, 1 S.E.2d 813; Burleson v. Burleson, 217 N. C. 336, 7 S.E.2d 706; State ex rel. North Carolina Utilities Comm. v. Johnson, 233 N.C. 588, 64 S.E.2d 829. Such a misjoinder is fatal, and causes a dismissal of respondents' cross-actions. Atkins v. Steed, supra; Teague v. Siler City Oil Co., 232 N.C. 469, 61 S.E.2d 345; State ex rel. North Carolina Utilities Comm. v. Johnson, supra.

In the drafting of pleadings it would be well for counsel to consider what this Court said in Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 135 N.C. 73, 47 S.E. 234, 235: "There must be at least substantial identity between the causes of action before they can be united in one suit, because, if there is not, the several causes of action may, for their decision, depend upon very different facts and principles of law, which would tend to confusion and uncertainty in the trial of the case, and result in great prejudice to some, if not all, of the parties."

The first question debated in respondents' brief is not presented for decision by their assignments of error.

The ruling of the court below in sustaining the demurrer is

Affirmed.

WINBORNE, JOHNSON and HIGGINS, JJ., took no part in the consideration or decision of this case.