Ely v. Early

• Decision Date: 28 February 1886
• Citation: 94 N.C. 1
• Court: North Carolina Supreme Court
• Parties: THOMAS ELY v. C. M. EARLY, et als.

94 N.C. 1

THOMAS ELY

v.C. M. EARLY, et als.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Shepherd, Judge, and a jury, at Spring Term, 1883, of the Superior Court of HERTFORD county.

This action was brought to recover the possession of two adjoining tracts of land. At the appearance term of the Court, the plaintiff filed the ordinary complaint in such cases, describing the land, alleging title in himself to the same, the wrongful possession thereof by the defendants, &c. The appellant defendants, in their answer, denied every material allegation in the complaint.

At a subsequent term, the plaintiff moved for leave to amend the complaint, which was granted by the Court, the appellant defendants objecting. In pursuance of such leave, the plaintiff filed a further complaint, alleging, as to one of the tracts of land mentioned, that unintentionally, by inadvertence, and the mutual mistake of the parties to it, he had executed a deed embracing the same land to the defendant Early; that the latter had admitted the mistake and consented to a proper correction of the deed; that on hearing that the husband appellant was about to purchase the land embraced by the deed from Early, he notified him of such mistake, and not to purchase; that he declared that the deed was registered and he would purchase and take the risk; that he did purchase the land with notice of the plaintiff's equity in that respect; and he demanded judgment that the deed be corrected. Only the appellants filed an answer, denying all the material allegations in this amended complaint, and they further alleged that more than three years had elapsed next after the plaintiff had knowledge of the alleged mistake, and before the filing of the amended complaint, and therefore his alleged right to have the deed corrected was barred by the statute of limitations. As to this part of the case, three issues of fact, whereof the following is a copy, were submitted to the jury, and they responded to the two first in the affirmative, and the third in the negative:

(1). “Was the interest of plaintiff, Thomas Ely, in the Brittain land by mistake of both parties conveyed by the deed of 26th August, 1875, to C. M. Early?”

(2). “Was A. B. Atkins (husband appellant) notified by Thomas Ely or C. M. Early of this mistake, and of Thomas Ely's claim to said land before November 4th, 1878?”

(3). “Did the plaintiff discover, more than three years before this suit was commenced, that the Brittain land was conveyed in the deed of August, 1875?”

The Court gave the jury the following instructions, to which the appellants excepted:

“That the burden of showing the alleged mistake was upon the plaintiff; that it must be done, not beyond a reasonable doubt, but by a preponderance of evidence -that is to say, if the plaintiff's evidence was placed in one end of the scales, and the defendant's in the other, and the one exactly balances the other, then the issue should be found in favor of the defendants. But if the plaintiff's evidence weighs down ever so slightly that of the defendants, then in favor of the plaintiff.”

The appellants moved for judgment non obstante veredicto, which motion was overruled, and they excepted.

There was judgment on the verdict for the plaintiff, and the defendants appealed.Messrs. W. D. Pruden and W. B. Shaw, for the plaintiff .

Messrs. R. B. Peebles and Winborne, for the defendants .

MERRIMON, J. (after stating the facts).

It is very true that the Court cannot, without the consent of the parties, so amend, change or modify the pleadings in a pending action as to make it substantially a new one. Merrill v. Merrill, 92 N. C., 657; McNair v. Commissioners, 93 N. C., 364. But its general powers, and especially those expressly conferred by The Code, §§272, 273, to allow amendments of the pleadings “in furtherance of justice,” are broad and comprehensive, and in all proper cases should be exercised freely by the Court, having due regard to fairness and the rights of the parties.

That it was competent to allow the amendments made in this case there can be no serious question. It seems that there was some mistake or misapprehension in the preparation of the complaint at first. The plaintiff's cause of action was not fully and sufficiently alleged. It is obvious that the allegations in the further or amended complaint were “material to the case,” and such as might, and, indeed, ought to have been made at first, in order to enable the plaintiff to reach the complete merits of the cause of action sued upon, as we shall presently see.

The Code, §273, expressly provides, among other things, that the Court may, “in furtherance of justice, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or where the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved.”

Now, the plaintiff brought this action to recover the land in question. If the allegations in the complaint were true, the land was his, and he ought to have recovered, but it turned out, as was alleged, that by inadvertence and mistake, in the provisions of a deed embracing it, of which the appellants had notice, the legal title to the land was in the husband appellant. At first, the plaintiff filed the ordinary complaint in an action to recover land, alleging title in himself. Why he failed to allege the mistake and material facts in respect to the same, and demand equitable relief, does not appear. Perhaps he may have believed that he had the equitable title to the land and could recover upon that. But whatever may have been the cause of omission, it was competent to allow the amendment by adding further allegations to the complaint. This is what was in legal effect done, however informal the amendment in taking the form of a further complaint.

Treating the right to have the deed corrected for the causes alleged, as a separate cause of action, as certainly in some cases it might be, the plaintiff might have united it with the cause of action at first alleged. The Code, § 267, provides, that “the plaintiff may unite in the same complaint, several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, when they all arise out of, (1) the same transaction, or transaction connected with the same subject of action * * * * * (5) claims to recover real property, with or without damages, for the withholding thereof, and the rents and profits of the same.” Plainly, the right to have the deed corrected was “connected with the same subject of action”--the land--and it was directly connected with, and affected the claim ““to recover real property.” The same section provides, that when such causes of action are united, they must affect “all the parties to the action,” and so they do in this case. Such causes of action may be united in the same complaint. One chief purpose of the Code is to facilitate litigation, without multiplicity of actions, and the power of the Court to complete a litigation begun, by amending the pleadings, is almost unlimited. Robinson v. Willoughby, 67 N. C., 84; McMillan v. Edwards, 75 N. C., 81.

But under the circumstances of this case, we think the ground of the equitable relief demanded, constituted a part of the plaintiff's cause of action at first alleged, and he did not need to allege two distinct causes of action. His alleged right to recover the land, and directly in that connection and for that purpose, and as part of it, to have the deed corrected, constituted his cause of action. The legal and equitable rights in respect to the land were so clearly connected, so essentially one, that they might not improperly be regarded and treated as constituting one cause of action.

The defendant had possession of the land, and was seeking in that connection to take an inequitable advantage of a mistake in a deed, whereby the legal title was in him. A part of the plaintiff's cause of action was the right to have the deed corrected.

It...