Tart v. Byrne

90 S.E.2d 692 (1956) 243 N.C. 409

J. Alvin TART and wife, Gladys Pearl Tart
v.
Mrs. Sue Nichols BYRNE, Administratrix, and Walter E. Nichols, Administrator of W. E. Nichols, Deceased, and I. R. Williams, Trustee.

No. 528.

Supreme Court of North Carolina.

January 13, 1956.

E. Reamuel Temple, Jr., Benson, for plaintiff-appellants.

McDermott & Cameron, Sanford, for defendant-appellees.

DENNY, Justice.

It appears from the answer filed by the defendant I. R. Williams, trustee, that J. Alvin Tart and wife, Gladys Pearl Tart, executed a note in the sum of $7,000, dated 20 November, 1952, to the First Citizens Bank and Trust Company, Dunn, North Carolina, and secured it by the execution of a deed of trust on certain lands and personal property to R. P. Holding, trustee. Thereafter, these plaintiffs employed I. R. Williams as their attorney to prepare the deed of trust referred to in the complaint. That the latter deed of trust was given on the identical real and personal property described in the deed of trust to R. P. Holding, trustee. That the First Citizens Bank and Trust Company was paid the sum of $7,000, furnished by W. E. Nichols on 5 September, 1953.

The deed of trust dated 5 September, 1953 to secure the note for $7,000 executed by the plaintiffs and delivered to and held by W. E. Nichols, according to the answer of I. R. Williams, trustee, has been foreclosed and the Dunn Production Credit Association of Dunn, North Carolina became the last and highest bidder in the sum of $8,500, which bid has been confirmed by the Clerk of the Superior Court of Harnett County; and the trustee is ready to deliver the deed to the said bidder.

The plaintiffs say in their brief, speaking through counsel, that they have abandoned their prayer seeking to restrain the defendant I. R. Williams, trustee, from foreclosing the property described in the deed of trust. Even so, they have not abandoned their alleged cause of action to have the deed of trust declared null and void and the foreclosure proceeding set aside. I. R. Williams, the trustee in the deed of trust, is a necessary party to such an action. However, the defendant trustee is neither a necessary nor a proper party to the cause of action for alleged defamation of character by W. E. Nichols and his servants and agents. He would likewise not be a necessary or proper party to the purported action for damages allegedly flowing from the suppression of bidding at the foreclosure sale by the servants and agents of the estate of W. E. Nichols, deceased. Moreover, these latter causes of action would not be triable along with the other alleged causes of action set out in the complaint if the action had been instituted against the defendant administrators alone. Johnson v. Scarborough, 242 N.C. 681, 89 S.E.2d 420; Snotherly v. Jenrette, 232 N. C. 605, 61 S.E.2d 708; Smith v. Gibbons, 230 N.C. 600, 54 S.E.2d 924; Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614; Pressley v. Great Atlantic & Pacific Tea Co., 226 N.C. 518, 39 S.E.2d 382.

In Snotherly v. Jenrette, supra [232 N. C. 605, 61 S.E.2d 710], Devin, J., later Chief Justice said: "It has been uniformly held by this Court that separate and distinct causes of action set up by different plaintiffs or against different defendants may not be incorporated in the same pleading, and that such a misjoinder would require dismissal of the action. Teague v. Siler City Oil Co., 232 N.C. 469, 61 S.E.2d 345; Foote v. C. W. Davis & Co., 230 N.C. 422, 53 S.E.2d 311; Southern Mills, Inc., v. Summit Yarn Co., 223 N.C. 479, 27 S.E.2d 289; Wingler v. Miller, 221 N.C. 137, 19 S.E.2d 247; Holland v. Whittington, 215 N. C. 330, 1 S.E.2d 813; Town of Wilkesboro v. Jordan, 212 N.C. 197, 193 S.E. 155; Roberts v. Utility Mfg. Co., 181 N.C. 204, 106 S.E. 664. But where several causes of action have been improperly united, the cause will not be dismissed and the court will sever the causes and divide the action. G.S. § 1-132; Southern Mills, Inc., v. Summit Yarn Co., 223 N.C. 479, 485, 27 S.E.2d 289; Gattis v. Kilgo, 125 N.C. 133, 34 S.E. 246."

In the instant case, the plaintiffs have attempted to set up separate and distinct causes of action which do not affect all the defendants as contemplated by G.S. § 1-123 and G.S. § 1-127, subd. 5. Moreover, the plaintiffs have failed to state separately their alleged causes of action as required by Rule 20(2) of the Rules of Practice in the Supreme Court, 221 N.C. 557; Mills v. Cemetery Park, 242 N.C. 20, 86 S.E.2d 893; Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104; Large v. Gardner, 238 N.C. 288, 77 S.E.2d 617; Parker v. White, 237 N.C. 607, 75 S.E.2d 615; King v. Coley, 229 N.C. 258, 49 S.E.2d 648.

The ruling of the court below sustaining the demurrer and dismissing the action will be upheld.

Affirmed.

HIGGINS, J., took no part in the consideration or decision of this case.