Benton v. Collins

• Decision Date: 17 March 1896
• Citation: 24 S.E. 122,118 N.C. 196
• Parties: BENTON v. COLLINS et al.
• Court: North Carolina Supreme Court

24 S.E. 122

118 N.C. 196

BENTON v. COLLINS et al.

Supreme Court of North Carolina

March 17, 1896

Appeal from superior court, Franklin county; Robinson, Judge.

Action by W. A. Benton against R. V. Collins and others (1) for damages for an assault and battery by defendant Collins on plaintiff; (2) to set aside a deed in trust by defendant Collins and his wife to defendant Eure as fraudulent, in order that the land therein described may be sold to pay plaintiff's recovery; or (3) for subrogation to the rights of a beneficiary in said deed; and (4) for general relief. To the complaint, defendants, except Eure, demurred on the grounds (1) that a demand for unliquidated damages for a tort is joined with a demand to set aside a deed for alleged fraud; and (2) that with said two causes of action is joined a demand for subrogation to certain alleged rights. The demurrer was sustained on both grounds. From the ruling sustaining the demurrer on the first ground, plaintiff appeals. Reversed.

C. M Cooke, for appellant.

F. S Spruill, for appellees.

MONTGOMERY J.

Subdivision 1 of section 267 of the Code, which provides for the joinder of several causes of action where they all arise out of "the same transaction, or transactions connected with the same subject of action," in the same complaint, has with us given rise to very many difficulties in its practical application, as it has in all the states which have adopted a similar provision in their Codes of Procedure. Ashe, J., in Young v. Young, 81 N.C. 91, said, for the court "While it was the object of the legislature, by adopting section 126 of the Code of Civil Procedure (Code, § 267), to avoid a multiplicity of suits, and prevent protracted and vexatious litigation, the first subdivision of the section has given rise to more unprofitable litigation and fine-spun disquisitions upon its construction than any other, not excepting section 343 (Code, § 590)." In Land Co. v Beatty, 69 N.C. 329, Rodman, J., delivering the opinion of the court, said, in reference to the same subdivision: "It is difficult to give any exact meaning to that clause." It is admitted, almost generally, to be quite an impossibility to give a technical meaning to such words and phrases as "transaction," "transactions connected with the same subject of action," and the like expressions. In the earlier cases of Logan v. Wallis, 76 N.C. 416, and Doughty v. Railroad Co., 78 N.C. 22, it was broadly stated that a cause of action founded on a tort could not be joined with one founded on contract; but in Hodges v. Railroad, 105 N.C. 170, 10 S.E. 917, this rule was explained, and extended so as to permit such a joinder of actions, provided they arose out of the same transaction. In considering the complaint in this action, from the view of the demurrer, as declaratory of two causes of action, it is to be observed that one of them is for a tort and the other is for an equitable demand and right. Neither of the causes of action in the complaint is ex contractu. The matter, then, of the uniting of causes of action, one in tort and one ex contractu, in the same complaint, is not the matter which we are to consider. The only question before us is, are the two causes of action stated in the complaint such as can be considered as arising out of the same transaction, or transactions connected with the same subject of action? If they can be considered as arising out of the same transaction, or transactions connected with the same subject of action, then there is no objection which could be made to the joinder of a tort and an equitable demand which could not, of equal force, be made to the joinder of an action ex contractu with one for an equitable demand. Taking this proposition to be true, we will find, in one of our own decisions, analogies that will aid us in determining the question before us. In Bank v. Harris, 84 N.C. 206, the complaint united a cause of action in debt on a bond with another to have declared void certain deeds for lands alleged to have been made by the debtor to his codefendants, after the execution of the bond, in fraud of the...