Buie v. Mechanics' Building & Loan Ass'n

Eeade J. The plaintiffs allege that they borrowed money of the defendants; gave a mortgage upon certain lands as a security ; and subsequently paid back a part of the sum borrowed at different times and in different amounts ; how much they do not know, and cannot ascertain, as the book in -which the entries were made, is in the hands of the defendants ; and that the defendants have sold the lands under the mortgage, and received the price, and that the amount of sales added to *120 the prior payments is more than the debt duo the defendants. And so the plaintiffs demand an account of the trust fund. ■ The right of a mortgagor, or any other cestui que trust to an account of the trust fund is so well settled, that either discussion or authority to sustain it would be out of place. In an amendment to the original-complaint the plaintiffs say, that when the lands were sold they were unable to buy them, and yet they were anxious for one of the tracts, and made an arrangement with the defendant Cummings, to buy it, and to make his title perfect, they made him a deed to the same, as well as the mortgagee did, with the understanding that Cummings should hold the land in trust, to be conveyed to plaintiffs whenever they should reimburse Cummings the amount which he bid for it. And Cummings is made party defendant, but no decree is asked against him. He comes in however, and files an answer, admitting the plaintiff’s allegations. To this the principal defendants demur, because they say, the claim for an account against them, and the claim against Cummings to have an absolute deed declared to be only' a security, are two separate and distinct causes of action against separate and distinct persons. The answer to this is, that no demand is made against Cummings, and no judgment or decree asked for against him. His rights are not litigated, or asked to be adjudicated. There is a mere explanation of a transaction between the plaintiffs and Cummings about the land which the plaintiffs supposed might embarrass them in the taking the account asked for, as without the explanation it might be said, well, if there is any thing due you on account, you have sold it to Cummings and we must account to Cummings. And so the plaintiffs by their amendment, and Cummings by his admissions, show and thereby bind themselves that the conveyance of the land by the plaintiffs to Cummings, had nothing to do with the balance *121 which might be due plaintiffs upon account with the principal defendants. So there are not two causes of action at all. As for joining Cunnings with the principal defendants, it is useful to them that it should be done, because the decree will bind him and prevent him hereafter from claiming any balance due the plaintiffs upon taking the account. And besides, making one a defendant who need not be, is generally immaterial. The increased cost is the only hurt, and that can be adjusted. But to leave out one who ought to be in, is generally fatal, unless amended. Rowland, et al., v. Gardner, 69 N. C. Rep. 53. There is error in sustaining the demurrer. This will be certified. Per Coriam. Judgment reversed.