133 S.E. 184 | N.C. | 1926
The plaintiffs instituted a proceeding before the clerk to establish a disputed boundary line as provided in C. S., 9. They filed their petition, the defendant filed an answer, and the cause was put on the civil docket for trial in term. Thereafter the plaintiffs filed an amendment to their complaint and the defendant demurred. The demurrer was overruled and the defendant excepted. In the amended complaint it is alleged: 1. That a part of the controversy relates to the dividing line between the lot numbered 19 and the two lots numbered 24 and 26; that T. P. Rogers has a life estate in No. 24 and that the defendant has no interest therein but claims that the line is 13 or 14 poles south of its true location, and that he has taken possession of a part thereof and wrongfully withholds possession. 2. That there is a tract of about four acres situated south of the true line, which upon the death of Ancil Rogers descended to his three sons Richard, John, and T. P. Rogers, and that the defendant has taken possession of it and excluded his cotenants. 3. That the defendant is in possession of a half-acre lot and a dwelling thereon and wrongfully withholds possession from B. B. Clayton who is the owner thereof. 4. That the defendant has unlawfully taken possession of a part of No. 24 and wrongfully withholds possession from T. P. Rogers, one of the plaintiffs.
The relief sought is the location of the dividing line as contended by the plaintiffs; that T. P. Rogers be declared to be the owner of lot No. 24 and B. B. Clayton of No. 26, excepting the four-acres lot, and of the small lot of which the defendant is now in possession; that the plaintiffs be put into possession of their respective lots; that Richard L. Rogers, T. P. Rogers and the defendant be decreed tenants in common of the four-acre tract; that T. P. Rogers recover of the defendant $175 as damages for the wrongful withholding of his land; that B. B. Clayton recover $75; and that the defendant pay the costs of the action.
It is alleged in effect that neither B. B. Clayton nor Richard L. Rogers has any interest in No. 24; that Richard, John, and T. P. Rogers are joint owners of the four-acre lot; that B. B. Clayton is the *52
owner of a large part of No. 26, including the half-acre lot; and that T. P. Rogers has no interest therein. B. B. Clayton has no interest in the damages which T. P. Rogers seeks to recover, and T. P. Rogers has no interest in the damages sought by B. B. Clayton. In substance two distinct causes of action are joined to recover separate tracts of land from the defendant — the ownership of the tracts being not joint, but several. It would seem, therefore, that the plaintiffs as to the recovery of the different lots have no community of interest and that there is a misjoinder of parties and of causes of action. Edgerton v. Powell,
After the appeal was taken and while the case was pending here the defendant as a matter of precaution filed an answer to the amendment; but of course this could have no effect on the jurisdiction of this Court.
The judgment overruling the demurrer is
Reversed.