Blount v. . Sawyer

Stacy, J. On 18 July, 1921, S. L. Sawyer instituted a special proceeding in rem in tbe Superior Court of Beaufort County for tbe purpose of registering title to certain lands, situate in said county, under tbe “Torrens Law” (C. S., 2377 et seq.), description of wbicb was duly set out in bis petition. - Mrs. Dena A. Blount and Mrs. R. H. Criffield, being two of tbe respondents in said proceeding, answered promptly, alleging ownership of certain lands, described by metes and bounds in tbeir respective answers, and denying tbe petitioner’s title to so mucb of tbeir lands as was covered by bis petition. Tbe clerk made tbe usual order of reference to tbe “examiner of titles” as provided by 0. S., 2387. Tbis having been done, tbe appellant, S. L. Sawyer, without proceeding further before tbe examiner of titles to establish bis title and boundaries as alleged in bis petition, entered upon tbe lands claimed by Mrs. Dena A. Blount and began to cut tbe timber therefrom. Whereupon, on 5 October, 1921, Mrs. Blount instituted an action against S. L. Sawyer for trespass and obtained an injunction restraining him from cutting tbe timber, until tbe title could be determined. Tbe lands claimed by tbe respective parties are identically tbe same in both proceedings. *211 At tbe October Term, 1924, an order was made by Sinclair, J., consolidating tbe special proceeding brought by S. L. Sawyer under tbe Torrens Law and tbe action for trespass instituted by Mrs. Blount and ordered that they be tried together, “subject to tbe right of S. L. Sawyer to move for a severance of tbe issues between himself and Mrs. Blount and Mrs. Criffield.” To this order, S..L. Sawyer excepted and appealed to tbe Supreme Court. Tbe authority of tbe judge to make such order of consolidation is tbe only question presented in No. 15, the case of Blount v. Sawyer. The issues raised by the petition and answer in the proceeding under the Torrens Law and by the complaint and answer in the injunction suit (it being in effect an action of trespass to try title) are in no way dissimilar; the same lands, the same titles and the same boundaries are involved in both proceedings, requiring the attention of the same lawyers, the work of the same surveyors and the attendance and testimony of the same witnesses. It would seem that the judge was not without power to enter the order of consolidation. Wilder v. Greene, 172 N. C., 94; Sumner v. Staton, 151 N. C., 198; Hartman v. Spiers, 87 N. C., 28; Jones v. Jones, 94 N. C., 111; Blackburn v. Ins. Co., 116 N. C., 821; Caldwell v. Beatty, 69 N. C., 365; Person v. Bank, 11 N. C., 294. After objecting and excepting to tbe order of consolidation and giving notice of appeal therefrom in No. 15, tbe appellant, S. L. Sawyer, at a later time, offered to submit to a voluntary nonsuit in No. 17, tbe special proceeding instituted by him under the Torrens Law. This was not allowed by Oranmer, J., and tbe correctness of this ruling is tbe only question presented by tbe appeal in No. 17, Sawyer v. Morrison et al. It is tbe position of tbe appellant that tbe order of consolidation, and tbe subsequent refusal to allow him to take a nonsuit in tbe proceeding instituted by him under tbe Torrens Law, will necessarily lead to great confusion on tbe trial; because in one proceeding be has tbe burden of proof, while Mrs. Blount has tbe laboring oar in tbe other, and tbe consolidation of tbe two, be says, will have tbe inconsistent effect of placing tbe burden of proof on both parties at tbe same time. Speas v. Bank, 188 N. C., p. 529; Bank v. Ford, 216 Pac. (Wyo.), 691. Without conceding this to be a necessary conclusion on tbe present record, it is sufficient to say that tbe objection urged is one of procedure and does not go to tbe extent of questioning tbe power of tbe court to consolidate tbe two proceedings. Tbe order of consolidation having been made in tbe exercise of a proper power, we think tbe subsequent order disallowing tbe petitioner’s motion for judgment as of nonsuit in tbe proceeding in rem, instituted by him under tbe Torrens Law, was correctly entered. We find no error on either appeal. Affirmed.