Webber v. . Taylor, 58 N.C. 36

Webber v. . Taylor

58 N.C. 36 | N.C. | 1859

This case was before the Court at December Term, 1854 (55 N.C. 9), and the facts are there stated with sufficient fullness to enable the reader to obtain whatever may be deemed necessary to a fuller understanding of the case than is furnished in the opinion of the Court at this term. The main allegations of the bill upon which the plaintiffs seek a reconveyance of the land in question from the defendant are that the land was conveyed by a deed absolute in its terms to one Edward Carman, but was intended as a mere security for a small debt which was due to him; that afterwards, one Thomas Moore paid the debt to Carman, amounting only to the small sum of $30, and took from him an absolute deed for the land, upon the express understanding, however, that he was to hold it for the separate use of the feme plaintiff and her children upon being repaid the money which he had advanced; that subsequently the plaintiffs tendered him the amount due, which he refused to receive unless they would also pay a debt of about $50 which he alleged was due from the plaintiff Samuel Webber, and that he afterwards sold the land to the defendant, but that the defendant, at the time of his purchase, had full notice of the plaintiffs' equity. The prayer is that the deeds to Carman and Moore may be declared void, and that the defendant may be compelled, by a decree of the Court, to convey (37) the land to the separate use of the feme and her children. Carman and Moore are not made parties to the suit, and there is no offer to pay to them, or either of them, or to the defendant Taylor, the debt which the plaintiffs admit that they owed, first to Carman and then to Moore, and for which the land was to be a security.

The defendant, in his answer, insists that he purchased bona fide for a fair price and without any notice of the claims of the plaintiffs, *44 though he admits that he knew they were in the actual possession of the land, thinking, however, that they were there as the mere tenants at will of his vendor.

It is much to be regretted that in the present state of the pleadings the cause cannot be heard on its merits. It is obvious that the plaintiffs cannot have a reconveyance of the land, except upon the footing of treating their conveyance to Carman as a mortgage, which was assigned successively to Moore and the defendant. In that view, Carman and Moore are necessary parties in order to have the debt due them ascertained and to make them contributory to the defendant in the event of a decree against him, and there should be an offer on the part of the plaintiffs to pay it. Guthriev. Sorrell, 41 N.C. 13; 1 Daniel's Chap. Prac., 329.

The objection for the want of parties does not necessarily require us to dismiss the bill, but we may order it to stand over, with leave to the plaintiffs to amend their bill. Gordon v. Holland, 38 N.C. 362; Kentv. Bottoms, 56 N.C. 69. This we deem the proper course in the present case, because the objection of a want of proper parties was not taken in the answer, but was made for the first time at the hearing, and that, too, after the defendant had himself taken the depositions of Carman and Moore as evidence in the cause. If these persons be made parties defendants it may be necessary, upon their answers being filed, that additional testimony should be taken; and in order to give the parties (38) an opportunity to take such testimony, should it become necessary, the cause must be remanded to the court below. The plaintiff must pay the costs, as in the case of a dismission without prejudice.Guthrie v. Sorrell, ubi supra.

PER CURIAM. Decree accordingly.

Cited: Harrington v. McLean, post, 137; Hawkins v. Everett, post, 45.