Coulter v. Wilson

• Decision Date: 17 May 1916
• Docket Number: 479.
• Citation: 88 S.E. 857,171 N.C. 537
• Parties: COULTER ET AL. v. WILSON ET AL.
• Court: North Carolina Supreme Court

88 S.E. 857

171 N.C. 537

COULTER ET AL. v. WILSON ET AL.

No. 479.

Supreme Court of North Carolina

May 17, 1916

Appeal from Superior Court, Burke County; Shaw, Judge.

Action by J. E. Coulter and wife and another against R. L. Wilson and others. From the judgment, so far as dismissing the action against the defendants other than Wilson, plaintiffs appeal. Affirmed.

Though there is no objection by demurrer or answer, action is properly dismissed as to certain defendants, the pleadings and evidence showing plaintiff has no cause of action against them, and that they are unnecessary for determination of the controversy between the other parties.

The action was instituted by plaintiffs against R. L. Wilson to recover damages for breach of the usual covenants in a deed by which said Wilson conveyed the land to feme plaintiff plaintiff alleging, among other things, that there was breach of covenant by reason of title paramount in R. S. Fraser, C N. Kidd, and others, and that this title had been successfully asserted by these parties in an action against plaintiffs and judgment entered establishing the superior title in them. Defendant R. L. Wilson, grantor, answered denying that there had been a breach of the covenants and making averment that the true title was in himself, and that plaintiffs, in their own neglect and wrong, had failed to make proper defense to the action brought against them by R S. Fraser and others, but had voluntarily submitted to a judgment, etc. Thereupon, at a former term of the court leave was given to make said R. S. Fraser and others parties defendant, and, this having been done by publication of summons and attachment of property within the jurisdiction of the court, plaintiffs filed an amended complaint, reaffirming in effect the allegations of the original complaint and making averment further that there was a dispute between the original defendant R. L. Wilson and others as to the title, etc. These last parties answered, alleging title in themselves, and that this had been adjudged in an action instituted by them against plaintiffs, as set out in the original complaint.

The cause coming on for trial, on motion, there was judgment dismissing the action as against R. S. Fraser and others, and, the trial proceeding between plaintiffs and R. L. Wilson, the following verdict was rendered:

"1. Has there been a breach of covenant of warranty of the defendant R. L. Wilson, as alleged in the complaint? Answer: Yes.

2. If so, what damages is the plaintiff entitled to recover? Answer: Value of 6 5/8 acres (of) land at $10.00 per acre, making $66.23."

Judgment on verdict for plaintiffs against R. L. Wilson. Plaintiffs excepted and appealed, assigning for error the order dismissing the action as to Fraser and others.

Avery & Ervin, of Morganton, for appellants.

S. J. Ervin, of Morganton, for appellees R. S. Fraser and others.

John T. Perkins, of Morganton, for appellee Wilson.

HOKE, J. (after stating the facts as above).

The court is unable to perceive that the plaintiffs, either in their allegations or evidence, have established any cause of action against defendants R. S. Fraser and others, appellees, or shown any right to have them retained further in the case.

Not only is it alleged in the original and amended complaint that these appellees are the holders of the true title, and that this fact has been established as between plaintiffs and appellees by judgment of a competent court, but the further proceeding has disclosed that the original defendant, R. L Wilson, grantor of plaintiffs, had broken his covenants of seisin and warranty in reference to the title, and plaintiffs...