Daniels v. Fowler

• Decision Date: 16 February 1897
• Citation: 120 N.C. 14,26 S.E. 635
• Court: North Carolina Supreme Court
• Parties: DANIELS et al. v. FOWLER et al.

26 S.E. 635

120 N.C. 14

DANIELS et al.

v.FOWLER et al.

Supreme Court of North Carolina.

Feb. 16, 1897.

Actions—Joinder of Causes—Parties—Demurrer—Quieting Title.

1. Under Code, § 267, providing that, where causes of action all arise out of a transaction connected with the same subject-matter, a cause of action in tort can be joined with one to enforce an equitable right, a complaint to set aside various conveyances of real and personal property by means of a series of deeds and judgments as fraudulent, and for damages for its detention and conversion, does not show a misjoinder of causes.

2. In a bill by heirs at law and distributees to set aside deeds procured from their ancestor by fraud, it is immaterial that his personal representative was made defendant, instead of plaintiff.

3. Under Act 1893, c. 6, plaintiff can ask to have a cloud removed from his title, though he is not in possession.

4. That a complaint is "argumentative, hypothetical, and in the alternative, " is no ground for demurrer.

Appeal from superior court, Pamlico county; Timberlake, Judge.

This was an action by the heirs at law and distributees of S. H. Fowler and their guardian against J. O. Baxter, his assignee C. H. Fowler, his administrator, in their representative and individual capacities, Hannah J. Kennedy, grantee, as agent, with notice, and without paying a valuable consideration, and J. F. Cowell, a joint tort feasor, as agent, and with notice, to recover the real and personal estate formerly owned by S. H. Fowler, and damages for its detention and conversion, on the ground that it was fraudulently obtained, through a conspiracy of defendants, by means of a series of deeds, judgments, and transactions, and was held by them under color of the following fraudulent claims of title, in none of which frauds the ancestor of plaintiffs participated, to wit: (1) A deed of trust for the benefit of creditors, claimed to have been executed by S. H. Fowler on his deathbed, when he was unconscious, to J. O. Baxter, assignee, preferring C. H. Fowler for $9,000. (2) A deed from Baxter, assignee, to C. H. Fowler, for part of the property mentioned in the deed of trust (3) A deed from C. H. Fowler, administrator of S. H. Fowler, to Hannah J. Kennedy, for certain lands contemplated in the conspiracy, but left out in the deed of trust by mistake of defendants; and the special proceeding before the clerk of the superior court to obtain leave to sell the lands for assets, which the said deed purports to follow. The defendant Baxter was the bookkeeper of defendant Fowler, the defendant Kennedy was the sister and partner of defendant Fowler, and the defendant Cowell was his partner. Defendants demurred to the complaint, and assigned many grounds, which are embodied substantially in the following: (1) That there is a misjoinder of causes of action, and the causes affect the several defendants differently. (2) That the action cannot be sustained: Because neither the administrator, administrator de bonis non, nor the receiver is a party plaintiff. (3) Because the creditors are not parties plaintiff. (4) Because there is no jurisdiction at term over— First, a cause of action for failure to file annual accounts; second, to set aside orders of sale and confirmation, and a deed executed thereunder, in a special proceeding to sell land for assets. (5) Because there is no allegation that S. H. Fowler made a deed of assignment. (6) That the complaint is argumentative, hypothetical, and in the alternative.

Clark & Guion, for appellants.

Simmons & Ward, for appellees.

CLARK, J. If the grounds of the complaint "arise out of one and the same transaction or series of transactions, forming one course of dealing, and all tending to one end; if one connected story can be told of the whole, "—it is not multifarious. Ruffin, C. J., in Bedsole v. Monroe, 40 N. C. 313, cited and approved in Young v. Young, 81 N. C. 91; King v. Farmer, 88 N. C. 22, and in Heggie v. Hill, 95 N. C. 303. To same purport is Hamlin v. Tucker, 72 N. C. 503. That the "main relief may be effectual, the plaintiff may state in his bill any number of conveyances, Improperly obtained from him, either at one or more times, or respecting different kinds of property, and ask to have them all put out of his way, or to have reconveyances; for the several conveyances do not so much constitute distinct subjects of litigation, but are rather so many barricades erected by the defendant to impede the progress of the plaintiff towards his rights." Bedsole v. Monroe, supra. "Where a general right is claimed, arising out of a series...