Kearns v. Primm

139 S.E.2d 697 (1965)

263 N.C. 423

Ruth P. KEARNS and Cleo P. Green v. Richard W. PRIMM, Administrator of Archie A. Primm, Deceased, Richard W. Primm, Individually, Dogwood Hosiery Company, and Marie Wright.

No. 377.

Supreme Court of North Carolina.

January 15, 1965.

*699 W. H. Steed, Thomasville, for plaintiff appellees.

Russell F. Van Landingham, Thomasville, and Walser, Brinkley, Walser & McGirt, Lexington, for defendant appellants.

BOBBITT, Justice.

Plaintiffs' allegations concern separate and distinct subjects, namely, (1) the Dogwood stock, (2) the Dyers stock, (3) the Marie Wright claim, and (4) Lots Nos. 19 and 20 of the "A. A. Primm Estate Subdivision." Plaintiffs did not state separately the cause of action relating to each of these subjects as required by G.S. § 1-123 and by Rule 20(2), Rules of Practice in the Supreme Court, 254 N.C. 783, 802. Hence, the complaint was subject to demurrer on the ground plaintiffs "improperly united" several causes of action. G.S. § 1-127(5); G.S. § 1-123; Heath v. Kirkman, 240 N.C. 303, 306, 82 S.E.2d 104; Tart v. Byrne, 243 N.C. 409, 412, 90 S.E.2d 692.

Here, misjoinder of parties and causes of action is the sole ground of demurrer. G.S. § 1-123, after setting out the several causes of action "(t)he plaintiff may unite in the same complaint," provides: "But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated." Where there is a misjoinder of parties and causes of action, the action should be dismissed. Bannister & Sons v. Williams, 261 N.C. 586, 135 S.E.2d 572, and cases cited; Vollers Co. v. Todd, 212 N.C. 677, 194 S.E. 84; Lucas & Lewis v. North Carolina Bank & Trust Co., 206 N.C. 909, 174 S.E. 301.

No demurrer asserts plaintiffs have failed, in respect of any subject of action, to allege facts sufficient to constitute a cause of action. Hence, consideration is limited to whether there is a misjoinder of parties and purported causes of action.

*700 A complaint must contain, inter alia, "(a) demand for the relief to which the plaintiff supposes himself entitled." G.S. § 1-122(3). What, if anything, plaintiffs seek to recover from Dogwood or from Marie Wright is unclear. Plaintiffs assert their action was instituted under G.S. § 28-147.

G.S. § 28-147 authorizes actions in the superior court in the nature of bills in equity to surcharge and falsify the accounts of administrators. Rudisill v. Hoyle, 254 N.C. 33, 39, 118 S.E.2d 145, and cases cited. Such action may be instituted by creditors, Salisbury Morris Plan Co. v. McCanless, 193 N.C. 200, 136 S.E. 371, or by legatees, Thigpen v. Farmers Banking & Trust Co., 203 N.C. 291, 165 S.E. 720; Davis v. Singleton, 259 N.C. 148, 130 S.E.2d 10, or by distributees, Leach v. Page, 211 N.C. 622, 191 S.E. 349. Where the action is for maladministration of the estate of an intestate, the administrator and the sureties on his bond are necessary and proper parties, Vollers Co. v. Todd, supra. All persons, creditors, beneficiaries or others, interested in the settlement of the estate, are proper parties and may be necessary parties. Davis v. Davis, 246 N.C. 307, 309-310, 98 S.E.2d 318; Rudisill v. Hoyle, supra, p. 42.

The title to the personal estate of an intestate, except the portion thereof allotted as allowances for a year's support, vests in the administrator. Coastal Sales Co. v. Weston, 245 N.C. 621, 627, 97 S.E.2d 267, and cases cited. According to plaintiffs' allegations, the personal estate of Archie A. Primm included the Dogwood stock, the Dyers stock and the funds (or assets from which derived) disbursed to Marie Wright; and title to the assets comprising said personal estate vested in defendant Primm as administrator. Consequently, an alleged failure of the administrator to account for these personal assets would seem the proper subject of an action under G.S. § 28-147. Undoubtedly, defendant Primm is a necessary and proper party to such action in his capacity as administrator and individually. In view of the ground of decision, it is unnecessary to determine whether the joinder of Dogwood and Marie Wright as parties defendant in such action gave rise to a misjoinder of parties and causes of action; and, since the factual allegations are meager and unclear as to the precise nature of the purported causes of action relating to the Dogwood stock and the Marie Wright claim, we deem it inappropriate to attempt to resolve that question.

The only defendant involved in the cause of action based on the alleged conspiracy in connection with the sale by the commissioner of Lots Nos. 19 and 20, is defendant Primm, individually. Upon the death, intestate, of the owner, title to his realty vests in his heirs. Griffin v. Turner, 248 N.C. 678, 104 S.E.2d 829. The facts alleged do not show any legal duty of defendant Primm in his capacity as administrator in connection with the intestate's realty. Indeed, plaintiffs' allegations negative the existence of such duty, indicating (1) the realty was sold in a partition sale proceeding to which the administrator was not a party, and (2) the availability of personal assets for distribution to the beneficiaries. Hence, defendant Primm, in his capacity as administrator, was not a necessary or proper party, and a fortiori Dogwood and Marie Wright were not necessary or proper parties, to the plaintiffs' cause of action with reference to the loss sustained by the heirs in consequence of the alleged conspiracy relating to the sale of Lots Nos. 19 and 20.

Assuming, but not conceding, there was no misjoinder of parties and causes of action with reference to the Dogwood stock, the Dyers stock and the Marie Wright claim, the attempted joinder of these three causes of action with the cause of action based on the loss sustained by the heirs in consequence of said alleged conspiracy does constitute a misjoinder of parties and of causes of action, and on account *701 thereof the demurrers should have been sustained and the action dismissed. Consequently, the judgment of the court below is reversed.

Reversed.