Sparks v. Sparks, 230 N.C. 715 (1949)

Oct. 12, 1949 · Supreme Court of North Carolina

230 N.C. 715

THOMAS J. SPARKS v. GRADY SPARKS and Wife, THELMA SPARKS, and BELL HENLINE and Husband, NELSON HENLINE.

(Filed 12 October, 1949.)

1. Pleadings § 22b—

In an action to quiet title, the court has authority to permit plaintiff to amend by striking from the complaint a paragraph setting up an estop-pel as a further ground for relief, G.S. 1-163, since the amendment does not effect a substantial change in the claim.

2. Quieting Title § 2—

An action by a father alleging that he owns the fee simple in a described tract of land and that his son and daughter claim that they own the land in fee as tenants in common by inheritance from their mother subject to the father’s life estate as tenant by the courtesy, states a cause of action to quiet title and remove an adverse claim as a cloud thereon, G.S. 41-10, and the spouses of the children being necessary to a complete adjudication o£ the cause, their joinder cannot constitute a misjoinder of parties, G.S. 1-69.

Appeal by defendants from Pless, J., at tbe April Term, 1949, of Mitchell.

This is an appeal from a decision upon a demurrer and necessitates an analysis of tbe complaint.

When its particularized allegations are properly construed and reduced to ultimate averments, tbe complaint alleges tbat tbe plaintiff is tbe owner in fee simple of certain pertinently described land in Mitcbell County, North Carolina; tbat tbe plaintiff is in tbe actual possession of tbe land; tbat tbe defendants assert a claim to tbe land adverse to plaintiff’s fee simple title, i.e,., tbat tbe defendants, Grady Sparks, and Bell Henline, whose spouses are also made parties to tbe action, inherited tbe lands from their mother, tbe plaintiff’s deceased wife, Mattie Sparks, and by reason thereof own tbe land in fee as tenants in common, subject, however, to tbe right of plaintiff to occupy tbe land during bis natural life as tenant by tbe curtesy consummate; tbat such adverse claim of tbe defendants is wrongful for tbe reason tbat plaintiff owned tbe land in fee simple at tbe time of bis wife’s death and she then bad no interest therein; and tbat such wrongful claim of tbe defendants constitutes a cloud on plaintiff’s fee simple title. Tbe prayer of tbe complaint is, in substance, tbat plaintiff’s title to tbe land in controversy be quieted, and tbat tbe adverse claim of tbe defendants to tbe property be removed as a cloud thereon.

■ As originally filed, tbe complaint contained an additional paragraph, which was designated as Paragraph 8 and which sets forth these matters r

“8. Tbat tbe defendant, Bell Henline, is further estopped from asserting or claiming any title, right or interest in said land for tbe reason tbat on 5 July, 1933, tbe plaintiff and his wife, Mattie Sparks, executed and deeded 37 acres of land to Nelson Henline and wife, Bell Sparks Henline, with tbe distinct understanding and agreement tbat tbe said 37 acres of land should be tbe full and complete share of said Bell Sparks Henline in tbe estate of tbe said Thomas J. Sparks and wife, Mattie Sparks, and tbat tbe said Bell Sparks Henline accepted said deed and bad the same recorded in Book 93, page 5, office of Register of Deeds for Mitcbell County, and is asked to be made a part of this amended complaint tbe same as if specifically alleged herein.”

Tbe defendants demurred to tbe complaint for misjoinder of parties and causes. Upon tbe bearing, tbe court permitted tbe plaintiff to amend bis complaint by tbe withdrawal of Paragraph 8 in its entirety, and entered an order overruling tbe demurrer and authorizing defendants to plead to tbe complaint as amended. Tbe defendants excepted and appealed.

Hall & Zachary for plaintiff, appellee.

Fouts <& Watson for defendants, appellants.

Ehvikt, J.

The order allowing plaintiff to amend bis complaint was authorized by G.S. 1-163 conferring upon courts the discretionary power to permit amendment of pleadings at any stage of a trial, even after final judgment, unless the amendment effects a substantial change in the claim or defense.

Manifestly, the complaint as amended states but one cause of action, i.e., a cause of action to quiet title to the locus in quo and to remove an adverse claim as a cloud thereon. G.S. 41-10; McIntosh: North Carolina Practice and Procedure in Civil Cases, sections 986-987; 51 C.J., Quieting Title, sections 154-170; 44 Am. Jur., Quieting Title, section 79. In consequence, no basis remains for the contention that several causes of action have been improperly united. G.S. 1-127.

Moreover, the amended complaint makes it clear that the defendants claim interests in the land in dispute under a common source adversely to plaintiff, and that their presence before the court is necessary to a complete adjudication of the questions involved in the suit. Hence, there is no misjoinder of parties. G.S. 1-69 ; McKeel v. Holloman, 163 N.C. 132, 79 S.E. 445; Swindell v. Smaw, 156 N.C. 1, 71 S.E. 1; Colgrove v. Koonce, 76 N.C. 363; 51 C.J., Quieting Title, section 150; 44 Am. Jur., Quieting Title, section 77.

The elimination of the eighth paragraph from the complaint obviates the necessity for ruling whether it rendered the complaint in its former state bad for misjoinder of causes of action. We do suggest, however, without so deciding, that the advancement or estoppel set out in paragraph eight inures to the benefit of Grady Sparks as an heir of Mattie Sparks rather than to the plaintiff as her surviving husband, and that in consequence paragraph eight of the complaint as it originally stood did not state a second cause of action in favor of the plaintiff against the defendants or any of them. Be this as it may, the defendants have no just cause to complain of the refusal of the court to dismiss the action for the supposedly objectionable portion of the complaint was removed by the amendment. Shore v. Holt, 185 N.C. 312, 117 S.E. 165.

The judgment overruling the demurrer and authorizing the defendants to plead to the complaint as amended is

Affirmed.