Keathly v. Branch

• Decision Date: 31 January 1881
• Citation: 84 N.C. 202
• Court: North Carolina Supreme Court
• Parties: F. M. KEATHLY v. A. B. BRANCH.

84 N.C. 202

F. M. KEATHLY

v.A. B. BRANCH.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION to recover land tried at August Special Term, 1880, of DUPLIN Superior Court, before Schenck, J. Verdict and judgment for plaintiff, appeal from the ruling of the court below, as set out in the opinion.

Mr. H. R. Kornegay, for plaintiff .

Messrs. Allen & Isler, for appellant .

SMITH, C. J.

At the term to which the summons in the action is returnable, the appellant, John D. Stanford, on his application and affidavit of ownership of the land, of which the plaintiff seeks to recover possession, is made a party defendant and files a separate answer, denying the allegations of the complaint, and averring title in himself. The defendant, Branch, also denies the plaintiff's allegations. No objection was then made to the order of the court, nor for nearly two years thereafter, until a special term held in August, 1880, when the presiding judge vacated the order as having been made without previous notice to the plaintiff, and thereupon the motion is renewed, and supported by a second affidavit, in which it is stated that the defendant, Branch, conveyed the land in dispute by a deed of mortgage in April, 1877, to one Matthew Moore, to secure a debt of $300 due the mortgagee, with power of sale, by virtue of which, after the maturity of the debt, the land was sold and purchased by the applicant (Stanford), and a deed therefor executed to him, conveying the title. His Honor denied the motion, for that, the appellant had never had possession of any part of the lands described in plaintiff's complaint, and did not connect himself with the possession of the same in any way, as was admitted by his counsel, and, notwithstanding the appeal from this ruling, proceeded with the trial of the cause between the original parties. The jury found the issues in favor of the plaintiff, and he had judgment accordingly.

It is very clear that a claimant for land in dispute between other parties to a suit, and not connected with, or interested in that controversy, nor injuriously affected by its result, cannot be allowed to intervene and assert his own independent title. This would be in effect to make a double action, and introduce new issues foreign to the original subject of controversy, and not within the scope of either section 61 or 65 of the code. But this is not the condition of the applicant in the present case. He has a direct relation to, and interest in the retention of the possession by the mortgagor for himself, and in preventing the plaintiff's recovery, and this is “ adverse to the plaintiff,” and in harmony with the defence. As the defendant holds permissively under the applicant, the latter is but protecting his own, while he protects the possession of the occupant. The practice which prevails in such cases is declared in Rollins v. Rollins, 76 N. C., 264, and is reaffirmed in Lytle v. Burgin, 82 N. C., 301. It is there held, that at common law every landlord has the right to be admitted to defend with or without the tenant, and that under the term “landlord” all persons have the right to come in as parties, “whose title was connected or consistent with the...