Little v. Buie, 58 N.C. 10, 5 Jones Eq. 10 (1859)

Dec. 1859 · Supreme Court of North Carolina

58 N.C. 10, 5 Jones Eq. 10

DANIEL LITTLE AND OTHERS against ARCHIBALD BUIE AND OTHERS.

Half brothers and sisters, not of the blood of the purchasing ancestor, cannot take under the statute of descents; where, therefore, one died seized of land descended through his mother from her father, and left no issue, nor brother, nor sister, except half sisters, not of his mother’s blood, it was Held that the father, surviving, took the inheritance; Rev. Code, 38, sec. 6.

Where a bill has parties plaintiff, having no interest in the questions set forth, the objection may be taken by demurrer.

(McMichal v. Moore, 3 Jones’ Eq. 471, cited and approved.)

Áepeal from, the Court of Equity of Robeson county

The bill was filed by Daniel Little and his children, Margaret Ann Tirginia Little, Mary Caroline Little, and Eliza Jane Little, alleging that they are tenants in common with the defendants of a large body of land, which descended to the defendants, and Rebecca, the wife of the plaintiff, Daniel, from her father, Dan. Buie. The bill further alleges, that after the death of Daniel Buie, plaintiff’s wife, Rebecca, had one son, Daniel B. Little, aud died ; that the plaintiff then intermarried with one Mary Evans, by whom he had one daughter, the plaintiff, Margrret Ann Virginia ; that after this, Daniel B. Little died in 1858, unmarried and without issue : and, within a month of his death, the other plaintiffs, Mary Caroline and Eliza Jane, were born to the said Daniel Little and his wife, Mary. The bill sets forth, that the plaintiff, Daniel, is entitled to an estate by the curtesy in the land in question, and that the other plaintiffs, the half sisters of the said Daniel B. Little, are entitled to the reversion in fe'e. The prayer is for a partition. To this bill the defendants demurred.

The cause was set down to be argued on the demurrer, and on argument, the Court below sustained the demurrer, from which the plaintiffs appealed.

W. MoL. Kay, for the plaintiffs.

P&rson and ¡Strange, for the defendants.

MáNly, J.

It is clear, upon the authority of the case of McMichal v. Moore, 3 Jones’ Eq. Rep. 471, that the father, upon the death of his son, took his entire interest in the land, in question, and the half sisters, not being of the blood of the transmitting ancestor took nothing. In making, therefore, the sisters parties complainant, there has been a misjoinder, for which defendants may demur. (See Story’s Eq. Pl. S. 544, and the cases there cited.)

The order below is affirmed, the demurrer is sustained, and the bill dismissed without prejudice, but at the plaintiffs’ costs.

Pee, Cueiam, ■ Decree accordingly.