Colgrove v. Koonce

• Decision Date: 31 January 1877
• Citation: Colgrove v. Koonce, 76 N.C. 363 (N.C. 1877)
• Parties: D. D. COLGROVE and others v. ELLEN KOONCE and others.
• Court: North Carolina Supreme Court

76 N.C. 363

D. D. COLGROVE and others

v.ELLEN KOONCE and others.

Supreme Court of North Carolina.

January Term, 1877.

MOTION in an ACTION to recover the possession of Real Estate brought by D. D. Colgrove against the defendant Koonce, the party in possession, to the Superior Court of JONES County, heard by Seymour, J. and transmitted to this Court in obedience to an order for a Certiorari dated June 10, 1876.

The case as stated by His Honor is as follows:

“At Spring Term, 1873, Isler was made a party defendant upon his own motion and filed an answer in the case at ______ Term of said Court. At Spring Term, 1875, a motion was made by all parties, excepting Isler, to strike out the name of Isler upon the ground that his claim to the land had no connection with the controversy between Colgrove and Ellen Koonce. This motion was continued until Fall Term, 1875, at which Term the plaintiff Colgrove withdrew from the motion which was however, insisted on by defendant Koonce. Upon the hearing of the motion, Isler offered to prove that he claimed under one J. C. B. Koonce, the deceased husband of defendant Ellen Koonce. This evidence was rejected and the motion to strike out allowed.”

Appeal by defendant Isler.

Mr. A. G. Hubbard, for plaintiffs .

Messrs. Green & Stevenson and S. W. Isler for defendants .

RODMAN, J.

This is an action to recover land. During its pendency Isler moved to be made a party defendant without setting forth, so far as appears on record, any claim to the land or any reason why he should be made defendant. The motion was allowed and Isler filed an answer, in which he claimed a title paramount and adverse to both plaintiff and defendants. At a subsequent term the original defendants moved to supersede the order by which Isler was allowed to become a party defendant. The Judge granted the motion and Isler appealed to this Court. By the law prior to the Code of Civil Procedure, no person but one claiming to be the landlord of the tenant in possession (the defendant in the action of ejectment) had a right to be made defendant without the consent of the plaintiff. Wise v. Wheeler 6 Ire. 196. By C. C. P. § 61, the landlord may be joined as a defendant; “and any person claiming title or right of possession to real estate may be made party plaintiff or defendant as the case may require.”

It seems to us that this section applies only when the person applying to be made a party is connected in interest with one or the other of the original parties and not when he claims adversely to both. As, for example, if he claims to be a co-tenant with the plaintiff, or in privity with the defendant or a common possession with them. Section 65 says: “The Court * * * * may determine any controversy before it when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in. And when in an action for the recovery of real or personal property, a person not a party to the action but having an interest in the subject thereof, makes application to the Court to be made a party it may...