Sexton v. Sutherland

• Decision Date: 21 July 1917
• Citation: 164 N.W. 278,37 N.D. 500
• Parties: SEXTON et ux. v. SUTHERLAND et al.
• Court: North Dakota Supreme Court

37 N.D. 500

164 N.W. 278

SEXTON et ux.

v.SUTHERLAND et al.

Supreme Court of North Dakota.

July 21, 1917.

Syllabus by the Court.

A wife may properly be joined with her husband as joint plaintiff in an action brought to determine adverse claims to a homestead, even though the legal title thereto is held in the husband's name.

Additional Syllabus by Editorial Staff.

Any mistake in joining unnecessary parties may be corrected on the final decree, which will be so framed as to work full and substantial justice, and to allow no relief to any plaintiff who has failed to allege or establish sufficient facts to show his right thereto.

An action, under Comp. Laws 1913, § 8144, to determine adverse claims to realty, was intended as a substitute for the equitable action to quiet title and the common-law action of ejectment, but is broader and more comprehensive than either of those actions.

Appeal from District Court, Stark County; Crawford, Judge.

Action by Patrick Sexton and Margaret Sexton, his wife, against S. S. Sutherland and other. From an order overruling a demurrer to the complaint as to plaintiff Margaret Sexton, defendant Sutherland appeals. Order affirmed.

Robinson, J., dissenting.

C. H. Starke, of Dickinson, for appellant. Casey & Burgeson, of Dickinson, for respondent.

CHRISTIANSON, J.

This is an appeal from an order of the district court of Stark county overruling a demurrer to the complaint of the plaintiff Margaret Sexton. The action is brought to determine adverse claims to a certain lot in the city of Dickinson. The plaintiffs filed the following joint complaint:

“The plaintiffs for their complaint herein allege and show to the court: (1) That the plaintiff Margaret Sexton is the wife of the plaintiff Patrick Sexton and joins with him in this action for the purpose of quieting title in the lands and premises hereinafter described, which is and for more than six years last past has been the homestead of herself and husband; that this action is for the purpose of freeing the title to such premises from all liens and incumbrances of whatever description claimed by the defendants, which liens and incumbrances have grown out of mortgages signed by her husband without being either signed or acknowledged by herself, the said Margaret Sexton. (2) That the plaintiff Patrick Sexton is the owner in fee simple of the following described real property, situated in the county of Stark and state of North Dakota, to wit: Lot two (2) in block two (2) in Hilliard & Manning's Second addition to the city of Dickinson, according to the plat thereof on file and of record in the office of the register of deeds, Stark county, North Dakota. (3) That the defendants claim certain estates or interests in or liens or incumbrances upon the same adverse to plaintiffs.

Wherefore plaintiffs pray: (1) That defendants be required to set forth all of their adverse claims to the property above described, and that the validity, superiority, and priority thereof be determined. (2) That the same be adjudged null and void, and that said defendants be deemed to have no estate or interest in or lien or incumbrance upon said property. (3) That plaintiffs' title be quieted to such lands and premises as against the defendants, or either of them, and that the defendants be forever debarred and enjoined from further asserting the same. (4) That they have such other and general relief as to the court seems just, together with the costs and disbursements of this action.”

The defendant Sutherland demurred to the complaint as to the plaintiff Margaret Sexton on the ground that it does not state facts sufficient to constitute a cause of action. It is conceded that the complaint states a cause of action so far as the plaintiff Patrick Sexton is concerned.

Under our statute a misjoinder or excess of parties plaintiff does not constitute a ground for demurrer. Olson v. Shirley, 12 N. D. 106, 96 N. W. 297. Whether a defendant may single out one of several joint plaintiffs, and demur to the complaint as to such plaintiff on the ground that the complaint does not state a cause of action, is by no means free from doubt. It is at least an unusual procedure, and one not to be encouraged, because, if a joint complaint states a cause of action in favor of any of such plaintiffs, it tenders an issue for trial. Ordinarily the only parties likely to be injured because unnecessary persons have been made parties to an action are such parties themselves. If these persons do not object to being made parties, as a general rule other persons have no cause for complaint. The mistake, if any, in joining unnecessary parties, may be corrected on the final decree, as the judgment will be so framed as to work full and substantial justice, and obviously no relief will be allowed to any plaintiff who has failed to allege or establish sufficient facts to show that he is entitled thereto. See Brown v. Lawton, 87 Me. 83, 86, 32 Atl. 733; 30 Cyc. 141. See, also, Webster v. Kansas City & S. F. Ry. Co., 116 Mo. 114, 22 S. W. 474, 476.

The splitting of a joint complaint in the manner adopted in this case tends to incumber the records of this court with needless appeals. It seems that the Legislature intended that this practice should not be pursued; otherwise, it would doubtless have made misjoinder or excess of parties a ground for demurrer. As this question has not been raised, however, and as both parties have argued the appeal on its merits, we will dispose of the question they have presented.

The sole contention on the part of the appellant is that, where the legal title to a homestead is held in the name of the husband, the wife has not a sufficient interest therein to maintain an action to determine adverse claims. Section 8144, Compiled Laws 1913, provides:

“An action may be maintained by any persons having an estate or interest in or lien or incumbrance upon real property whether in or out of possession thereof, and whether said property is vacant or unoccupied against any person claiming an estate or interest in or lien or incumbrance upon the same for the purpose of determining such adverse estate, interest, lien or incumbrance.”

That courts of equity have inherent original jurisdiction to entertain suits to quiet title is elementary. 17 Enc. Pl. & Pr. 279. And:

“The broad grounds on which equity interferes to remove a cloud on title are the prevention of litigation, the protection of the true title and possession, and because it is the real interest of both parties, and promotive of right and justice, that the precise state of the title be known, if all are acting bona fide.” 32 Cyc. 1306.

And hence:

“A court of equity, on the sole ground of preventing multiplicity of suits, will entertain an action to quiet title, where there are a number of persons interested in it, and a great many actions at law would be necessary to conclude the title.” 32 Cyc. 1307.

The statutory action to determine adverse claims was evidently designed as a substitute for the equitable action to quiet title and the common-law action of ejectment; but it is broader and more comprehensive than either of those actions. Burleigh v. Hecht et al., 22 S. D. 301, 307, 117 N. W. 367. Whether the action is to be regarded as legal or equitable must be determined by the pleadings. Mitchell v. Black Eagle Mining Co., 26 S. D. 260, 265, 128 N. W. 159, Ann. Cas. 1912B, 85;Tracy v. Wheeler, 15 N. D. 248, 249, 107 N. W. 68, 6 L. R. A. (N. S.) 516;Powers v. First Nat. Bank, 15 N. D. 466, 470, 109 N. W. 361. The general purpose and effect of the statute, as regards the equitable form of the action to determine adverse claims, is to extend the remedy to cases in which by the settled rules of equity no relief could be had, either because the adverse claim is not such as to constitute a technical cloud, or because the plaintiff is not in a situation to invoke the equitable jurisdiction. 17 Enc. Pl. & Pr. 290; Burleigh v. Hecht et al., 22 S. D. 301, 307, 117 N. W. 367. The purpose of the action, as stated by the Legislature, is to determine adverse or conflicting claims to real property.

The Legislature intended to afford an easy and expeditious mode of determining all conflicting claims to land, whether derived from a common source or from different or independent sources (Walton v. Perkins, 33 Minn. 357, 23 N. W. 527), and thereby avoid a multiplicity of suits. Such legislative intent is clearly evidenced by the express direction that “the court in its decision shall find the nature and extent of the claims asserted by the various parties, and determine the validity, superiority and priority of the same.” Section 8153, C. L. 1913; Spencer v. Beiseker, 15 N. D. 140, 107 N. W. 189;Mitchell v. Black Eagle Mining Co., 26 S. D. 260, 265, 128 N. W. 159, Ann. Cas. 1912B, 85. That a wife may maintain an appropriate action to protect the homestead right is generally recognized by the courts. Dieter v. Fraine, 20 N. D. 484, 128 N. W. 684;Eve v. Cross, 76 Ga. 695;Adams v. Beale, 19 Iowa, 61;Mauldin v. Cox, 67 Cal. 390, 7 Pac. 804;Andrews v. Melton, 51 Ala. 400;Comstock v. Comstock, 27 Mich. 97;McKinnie v. Shaffer, 74 Cal. 614, 16 Pac. 509;Magneson v. Pacific Mfg. Co., 26 Cal. App. 52, 146 Pac. 69. The right to maintain such action is also recognized by section 5610, Compiled Laws 1913, which limits the time within which such action may be brought.

The statutes of this state provide:

“All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs except as otherwise provided in this chapter.” Section 7403, C. L. 1913.

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of the questions involved therein; and in an action to recover possession of real estate the landlord and tenant thereof may be joined as defendants, and any...