Ezzell v. Merritt
| Decision Date | 08 November 1944 |
| Docket Number | 379. |
| Citation | 31 S.E.2d 751,224 N.C. 602 |
| Parties | EZZELL et al. v. MERRITT et al. |
| Court | North Carolina Supreme Court |
Civil action to recover the balance of the purchase price of certain land for the benefit of the heirs of one Peter Brewer.
Peter Brewer died in 1928, leaving a will under which James I Gainey, one of the executors, qualified and died without fully administering said estate and filing a final account but while acting as such executor the real estate was divided among the devisees of Peter Brewer according to the will.
Elizabeth Ezzell, one of the daughters and devises, was allotted the tract of land which she later sold to the defendant, Evander Merritt. On 19 December, 1928, James I. Gainey loaned Elizabeth Ezzell $350, at 6% interest, from funds belonging to the estate and took her note for the same, payable to him personally, on 15 December, 1929, secured by her mortgage on the allotted land, also made to him personally. No payment was made on this indebtedness and taxes amounting to approximately $150 accumulated against the land up to the time Elizabeth Ezzell sold the land to Merritt.
The plaintiffs allege the terms of the sale were that Evander Merritt should pay Elizabeth Ezzell $50, assume the accumulated and unpaid taxes and in addition thereto, pay the heirs of Peter Brewer (of whom she was one) an amount equal to the principal and interest represented by the note and mortgage executed to James I. Gainey; and for said consideration, she was to make, and did make, him a deed for the land on 7 January, 1943. Merritt, plaintiffs allege, has paid the $50 and substantially all of the accumulated taxes but has failed and refused to pay the heirs of Peter Brewer the amount of money he agreed to pay to them.
The defendant, Evander Merritt, filed an answer denying any agreement to pay the additional sum of $350, with interest, as alleged by plaintiffs. The case came on for trial at the February Term, 1944. During the progress of the trial, the presiding Judge being of the opinion an administrator d.b.n., c.t.a., of the estate of Peter Brewer should be appointed and made a party to the action, in order to protect the defendant against a claim on the part of the estate, ordered a mistrial to that end. Whereupon, at March Term, 1944, an order was made making J. H. Lewis, administrator d.b.n., c.t.a., of Peter Brewer, a party plaintiff with leave to file complaint, and also making A. K. Parker, administrator of the estate of James I. Gainey, a party defendant, against whom summons should issue with copy of the original complaint and copy of the complaint of J. H. Lewis, administrator d.b.n., c.t.a.
Thereafter J. H. Lewis, administrator d.b.n., c.t.a., of the estate of Peter Brewer, filed a complaint in which he adopted the allegations of the original complaint in each and every particular, and further alleged that the estate of James I. Gainey has no interest in or claim to any part of the recovery sought, nor any interest in the note and mortgage executed by Elizabeth Ezzell, and demanded judgment to the end that he, as administrator d.b.n., c.t.a., of the estate of Peter Brewer, might receive and administer any sum recovered.
A. K. Parker, administrator of the estate of James I. Gainey, deceased, filed an answer admitting every material allegation of the foregoing complaint.
The defendant, Evander Merritt, without obtaining permission to withdraw his answer to the original complaint for the purpose of demurring, filed a demurrer to both complaints, upon the ground of a misjoinder of parties and causes of action.
His Honor sustained the demurrer and dismissed the action. Plaintiffs appeal, assigning error.
Faircloth & Faircloth, of Clinton, for plaintiffs.
A. McL. Graham, of Clinton, for defendant.
The following provisions are contained in G.S. § 1-68: G.S. § 1-123 reads in part as follows:
It is often exceedingly difficult to determine what parties may be joined as plaintiffs as well as what causes of action may be joined under the provisions contained in the foregoing statutes. 'No general rule has been or can be adopted with regard to multifariousness.' Craven County v. Investment Co., 201 N.C. 523, 160 S.E. 753, 756.
The action here is not for the foreclosure of the mortgage deed executed by Elizabeth Ezzell, on 19 December, 1928, nor for a judgment on the note secured thereby, but is based upon an alleged parol agreement to pay to the heirs of Peter Brewer a sum of money equal to the principal amount for which the aforesaid note was executed, together with interest thereon at the rate of 6% per annum from the date of its execution. The plaintiffs, heirs of Peter Brewer, in their complaint allege the possession of the note and mortgage and their readiness to surrender to the defendant Merritt...
To continue reading
Request your trial