Wiggins v. . Harrell

Adams, J. The relief sought in the complaint first filed by the plaintiffs was an order to restrain the defendants from selling the land under the deed of trust executed by John E. Wiggins, trustee. Judge Mid-yette issued a temporary restraining order and Judge Small announced his purpose to continue it to the final hearing upon certain conditions. Failure of the plaintiffs to comply with the conditions effected a dissolution of the order. In consequence the land was sold under both deeds of trust at the price of $8,600. The administratrix of S. I. Harrell applied $3,000 of this amount in satisfaction of the first note, and the plaintiffs by an amended complaint seek in this action to recover the remainder. The basis of this claim is the alleged want of power on the part of John E. Wiggins, trustee in the will of Lallah B. Wiggins, to execute a valid mortgage on the land. The brief of the plaintiffs is addressed to the single question whether under the terms of the will the trustee had power to borrow money and secure its payment by a mortgage on property which was to be held in trust for their benefit. This, in our opinion, is not the decisive question. Let us concede, without deciding, that the trustee had no right to execute the mortgage and that the plaintiffs have an interest in the controversy which in a proper action the courts would protect. The trustee is not a party; he is neither a plaintiff nor a defendant. Presumably, the plaintiffs preferred not to make him a party; but if he was unwilling to join them in the prosecution of the action they could have included him among the defendants. C. S., 457. Is he a necessary party? The testatrix, Lallah B. Wiggins, appointed him a trustee, to manage and control all the devised property for the interest and benefit of her children during the period of his natural *339 life — “the said management to be left entirely to the judgment and discretion of the said trustee.” He is living. If, therefore, the mortgage should be declared void the restored property must be returned to the trustee for management during his natural life, unless upon good cause he be duly removed. It could not be turned over to the plaintiffs without disregard of the express terms of the will. If the relief sought by the plaintiffs should be granted, that is, if the mortgage should be set aside, the rights of the trustee would necessarily be involved, because he would be entitled to the fruits of the litigation. “Necessary or indispensable parties are those whose interests are such that no decree can be rendered which will not affect them, and therefore the court cannot proceed until they are brought in.” North Carolina Prac. & Procedure, sec. 209. Any decree that might be rendered in this action would necessarily affect the interests of the trustee under the will. If he had a right to make the mortgage, the sale divested him of the legal title to the mortgaged property; if he had no such right other questions affecting his interests would at once arise. It may therefore be said that he is a necessary party. Defect of parties appearing upon the face of the complaint must be pointed out by demurrer; otherwise the defect will usually be deemed to have been waived. Lanier v. Pullman Co., 180 N. C., 406. But for defects in the merits of an action the defendant may demur, or file an answer and go to trial on the merits, and then move to dismiss. North Carolina Prac. & Procedure, sec. 455. It seems to be obvious that the plaintiffs purposely declined to make the trustee under the will a party to the action and that they now rest their right to recover the controverted property as the beneficial owners without regard to the legal or equitable rights of the trustee. By this method they undertake to exclude him entirely and to assert as a meritorious cause of action their right to succeed to whatever title he would have if the mortgage should be decreed to be ineffective. The allegations in the complaint, if established, would not entitle them to the relief sought. Objection to the merits were not waived by the defendants’ failure to demur. The record presents other defenses of a serious nature, which we deem it unnecessary to consider. Judgment Affirmed.