Burleson v. . Burleson , 217 N.C. 336 ( 1940 )

Civil action to remove cloud from title to real property; to have certain instruments purporting to be deeds declared null and void; and to recover possession of certain lands from the defendants.

The defendants W. G. Vance and The Northwestern Bank, in apt time, filed their written demurrer to the complaint on the grounds that there is a misjoinder of causes of action and a misjoinder of parties defendant.

Upon the hearing upon the demurrer the court overruled the same and entered judgment accordingly. The said defendants excepted and appealed. The plaintiffs are the heirs at law of Sherman Burleson, deceased, and as such are the owners as tenants in common of all lands of which he died seized and possessed. In the complaint the plaintiffs describe five separate tracts of land, four of which are located in Cane Creek Township and one in Grassy Creek Township, Mitchell County, and allege that they, as the heirs at law of Sherman Burleson, are the owners thereof.

The lands involved in the controversy between the defendant bank and plaintiff are located in Cane Creek Township. The lands involved in controversy between the plaintiffs and Jefferson Ward are likewise in said township and the lands in controversy between the plaintiffs and W. G. Vance are in Grassy Creek Township.

It is alleged in the complaint that the first, second, third and fifth tracts therein described were conveyed by Sherman Burleson by mortgage to the Merchants Farmers Bank. The date of the mortgage is not disclosed. It is further alleged that on 8 March, 1934, there was a foreclosure sale under the terms of the mortgage and foreclosure deed was executed to John C. McBee, Jr., 7 September, 1934; that the exercise of the power of sale occurred more than ten years after the maturity of the indebtedness and at a time when the power of sale was barred by the statute of limitations; that McBee purchased as agent of and for the mortgagee; that no consideration was paid; that he, at the request of the mortgagee, his principal, executed a quitclaim deed to the defendant Connie Burleson. It is further alleged that one George L. Green, acting for Merchants Farmers Bank, procured Connie Burleson to execute a deed in trust on that property (presumably omitting the fifty tract) in behalf of Merchants Farmers Bank; that thereafter Green, trustee, executed the power of sale and delivered a foreclosure deed to the Merchants Farmers Bank; that all of said transactions constituted a maneuver on the part of Farmers Merchants Bank, mortgagee, to purchase at its own sale and the said bank acquired no title thereto and its successor, the defendant Northwestern Bank, which by consolidation has succeeded to all the rights, duties and liabilities of the Merchants Farmers Bank, is not the owner thereof.

As to the fifth tract, plaintiffs allege that Connie Burleson, subsequent to receiving the foreclosure deed from McBee, trustee, undertook to convey said tract to W. G. Vance, who has entered into possession thereof.

The complaint then alleges that Jefferson Ward is in possession of that portion of plaintiffs' land described as fourth tract; that he claims title through a foreclosure deed executed by W. G. Vance, mortgagee, under a mortgage from Sherman Burleson dated 12 March, 1926; that foreclosure sale was had at a time when the power of sale was barred by the lapse of time; and that the defendant Jefferson Ward acquired no title thereunder. It is likewise alleged that the defendant Jefferson Ward has taken possession of 40 acres of land outside the description contained in said mortgage.

Thus it appears that Jefferson Ward and W. G. Vance are in no wise interested in the controversy between the plaintiffs and the defendants Connie Burleson and Northwestern Bank as to the first, second and third tracts. Neither Jefferson Ward nor Northwestern Bank are necessary parties in the controversy respecting the fifth tract. The Northwestern Bank is not involved in any respect as to the title to the fourth or fifth tracts. As it is alleged that Jefferson Ward has taken possession of forty acres without any apparent paper title thereto he alone is the necessary party in respect thereto.

From the foregoing facts it is made to appear there is a misjoinder both of parties and causes of action. The demurrer should have been sustained.Shuford v. Yarborough, 197 N.C. 150, 147 S.E. 824; Bank v. Angelo,193 N.C. 576, 137 S.E. 705; Lucas v. Bank, 206 N.C. 909; Wilkesboro v.Jordan, 212 N.C. 197, 193 S.E. 155; Vollers Co. v. Todd, 212 N.C. 197,194 S.E. 84; Smith v. Land Bank, 213 N.C. 343, 196 S.E. 481;Holland v. Whittington, 215 N.C. 330, 1 S.E.2d 813.

Where there is a misjoinder both of parties and causes of action a severance is not permissible. Jones v. McKinnon, 87 N.C. 294; Cromartiev. Parker, 121 N.C. 198; Mitchell v. Mitchell, 96 N.C. 14.

The action must be dismissed as to the demurring defendants without prejudice to the rights of the plaintiffs to prosecute their several claims in separate actions against the various defendants, grouped according to their interests in the property. Roberts v. Mfg. Co., 181 N.C. 204,106 S.E. 664; Shore v. Holt, 185 N.C. 312, 117 S.E. 165; Weaver v. Kirby,186 N.C. 387, 119 S.E. 564; Bickley v. Green, 187 N.C. 772,122 S.E. 847.

Reversed.