95 N.C. 303 | N.C. | 1886
(Bedsole v. Monroe,
(305) The demurrer was overruled by the Court, and the defendants appealed. The grounds assigned for the demurrer, present the sole question for our consideration: "Whether the complaint is obnoxious to the objection of multifariousness."
A bill is multifarious, as the term is generally understood, when there is a misjoinder of distinct and independent causes of action. Adams Equity, p. 309, note. 1.
Whether a complaint is multifarious, usually resolves itself into the question, whether the causes of action united, are such that they may be joined in the same action. The Code, § 267, Sub. Div. 1, provides, "that causes of action may be joined when they arise out of the same transaction, or transactions connected with the same subject of action."
This section of The Code, we do not think, makes any substantial change in the rules of practice which obtained before the adoption of The Code in the Courts of Equity with regard to multifariousness.
Whatever effect it may have had, has been to enlarge the right of uniting in one action different causes of action.
The rule in such a case as existing prior to The Code, was thus announced by RUFFIN, C. J., in Bedsole v. Monroe,
We have referred to these cases as authorities upon the question under consideration, for the reason that in the case of Young v. Young,
But in addition to these authorities, we refer to what Mr. Bliss, in his work on Code Pleading, § 110, has laid down as the rule of practice in such cases. Speaking of the improper union of defendants under this section of The Code, he says: "When several persons, although unconnected with each other, are made defendants, a demurrer will not lie if they have a common interest centering in the point in issue in the cause." And in § 126, treating of the joinder of distinct causes, he says: "Not only under this class may all causes of action be united in one proceeding, that arises out of the same transaction, but also those that arise from different transactions, provided they are connected with the same subject of the action."
Now applying the principles announced by these authorities to (307) the facts of this case, the question recurs, is the complaint *276 multifarious? The facts are, C. C. Heggie became indebted in about one thousand dollars to the defendant, the People's Building and Loan Association, and gave them a mortgage on the land in question, in the year 1873, to secure the debt, and subsequently, in 1874, the said C. C. Heggie gave a second mortgage on the same land, to John W. Hays, trustee, to secure a debt of five hundred dollars which he owed to Finch and Harris, and in February thereafter, Hays foreclosed the second mortgage by a sale of the land, and the plaintiff became the purchaser, at the price of $625.00, and obtained a deed from the trustee in fee simple.
On the 5th of July, 1875, the People's Building and Loan Association foreclosed its first mortgage by sale of the land, when the defendant N.M. Wilson became the purchaser, at the price of $1,066, and afterwards, to-wit, on the 4th day of August, 1879, the land was sold by the Sheriff, under an execution in favor of the defendants Hill and Watkins, against said Wilson, and purchased by the said C. C. Hill and Charles Watkins. And that on the 4th day of August, 1879, the said Wilson, Hill, and Watkins knew of the equity of the plaintiff.
The plaintiff alleged in the complaint, that he had been informed and believed that the indebtedness of Heggie to the People's Building and Loan Association had been discharged, but if not, there was only $177.57 due to the Association.
This balance, we must assume, was claimed by the Association, as the plaintiff had alleged that he was informed and believed that the entire debt had been paid.
The plaintiff, as he alleged, was the owner of the equity of redemption, and entitled to the surplus, if any, after satisfying the debt secured by the first mortgage, provided there was any part of the debt secured by that mortgage remaining due at the time of the sale, but if the mortgage had been satisfied before the sale, the sale was void, and the purchasers, Wilson and Hill and Watkins, got no title to the land; (308) and if they obtained no title, by reasons of the nullity of the sale, the incumbrance of the first mortgage having been put out of the way, the plaintiff obtained a good and perfect title to the land, by his purchase, under the second mortgage, and would be entitled to recover the possession from the defendants Hill and Watkins.
The plaintiff's action is in the nature of a bill in equity with a double aspect.
He says if the first mortgage was satisfied before the sale to Wilson, he is entitled to the land, but if not satisfied, he is entitled to recover the surplus, if any, after paying the debt secured by the first mortgage.
In this view of the case, it would seem to involve the necessity of an account, as prayed for, of the payments made by Heggie, the mortgagor, *277 to the People's Building and Loan Association, in the result of which the other defendants are quite as much interested as the Association, for their title depends upon the fact that the mortgage under which they purchased was unsatisfied at the time of the sale. All of the transactions of the different, defendants, tend to and center open the one question, whether the first mortgage was satisfied when the sale was had under it. This being so, upon all the authorities cites, whether existing before or since The Code, warrants the joinder of the causes in this complaint. What is the subject of an action, is more easily described than defined. Judge Bills thus illustrates it: He says, in § 126, "In an action to recover the possession of land, the right is to the possession, the wrong is the dispossession; the object is to obtain possession, and the subject, or that in regard to which the action is brought, is the land." Here the plaintiff's interest in the land is the subject of the action, and although the purchases by the plaintiff under one mortgage, and that by Wilson, Hill and Watkins under the other, are district transactions, they are transactions connected with the same subject of the action.
The right asserted by the plaintiff covers the whole case, and (309) upon the authorities we have cited, it can make no difference that the rights of the defendants are distinct. But they are not so distinct but that the liabilities of some of the defendants are dependent upon the liabilities of the others, and this necessarily requires an account to be taken to determine their respective rights and liabilities. This, it seems to us, settles the questions of misjoinder; and our conclusion is, the complaint is not multifarious, and the judgment of the Superior Court is consequently affirmed, and the cause remanded to the Superior Court of Granville count, that the defendant may answer the complaint, if he should be so advised.
No error. Affirmed.
Cited: Outland v. Outland,