Winders v. Sutherland

• Decision Date: 03 October 1917
• Docket Number: 227.
• Citation: 93 S.E. 726,174 N.C. 235
• Parties: WINDERS v. SUTHERLAND ET AL.
• Court: North Carolina Supreme Court

93 S.E. 726

174 N.C. 235

WINDERS v. SUTHERLAND ET AL.

No. 227.

Supreme Court of North Carolina

October 3, 1917

Appeal from Superior Court, Duplin County; Lyon, Judge.

Action by J. B. Winders against John F. Sutherland and others. From a judgment for plaintiff, defendants appeal. Affirmed.

A joint demurrer must be overruled if the pleading is good as to any demurrant.

Stevens & Beasley, of Kenansville, and W. S. O'B. Robinson, of Charlotte, for appellants.

Gavin & Wallace, of Kenansville, and R. D. Johnson, of Warsaw, for appellee.

CLARK C.J.

In 1907 the plaintiff received a deed for a tract of land from the defendants Sutherland and Hobbs, with warranty of title of seisin and freedom from incumbrance. In 1905 John R. Smith conveyed this land to Sutherland with the same warranties. A portion of said land having been recovered against the plaintiff by action, he brought this action against all the above-named defendants. The defendants demurred upon the ground that it was a misjoinder of action and of parties to unite all the defendants in one action, and to join in the same action upon their covenants of warranty Sutherland and Hobbs, the plaintiff's grantors, and John R. Smith and wife upon his warranty in the deed to Sutherland, because they were independent and separate transactions.

Winders could sue Smith upon the covenants in Smith's deed to Sutherland, since he held a deed for the same property with the same warranties from Smith's grantee. Markland v Crump, 18 N.C. 94, 27 Am. Dec. 230; Wiggins v Pender, 132 N.C. 638, 44 S.E. 362, 61 L. R. A. 772. The demurrer was properly overruled. At the most, there would have been merely unnecessary parties, and for this a demurrer will not lie. Such party has his remedy by motion to strike out his name. Sullivan v. Field, 118 N.C. 358, 24 S.E. 735; Worth v. Trust Co., 152 N.C. 242, 67 S.E. 590.

Moreover where two defendants join in a demurrer and the complaint states a good cause of action as to one of them, the demurrer must be overruled. Caho v. R. R., 147 N.C. 20, 60 S.E. 64.

However we think it was no error to join these defendants in the same action. While Hobbs and Sutherland could not sue Smith until they had sustained a loss, the plaintiff, on his being ousted, could sue Smith or any other warrantor in the chain of title. He had the same cause of action against Sutherland and Hobbs, his immediate grantors. The code system does not...