Moore County v. . Burns

BaRNHill, J. The demurrer must be overruled if the complaint is good as to any one of the demurrants. That is, if any one of defendants is a necessary or proper party as to each tract -of land, the complaint is not subject to attack-by joint demurrer. Winders v. Southerland, 174 N. C., 235, 93 S. E., 726. The joinder of II. F. Burns as a party defendant is not fatal. He is not a necessary party as to any one of the tracts. His joinder is mere surplusage and is not ground for demurrer by other defendants. Sullivan v. Field, 118 N. C., 358; Abbott v. Hancock, 123 N. C., 99; Shuford v. Yarborough, 197 N. C., 150, 147 S. E., 824; Furniture Co. v. R. R., 195 N. C., 636, 143 S. E., 242. The plaintiff contends that under section 1719, chapter 310, Public Laws 1939, now Gr. S., 105-391, all defendants other than H. F. Burns are necessary or at least proper parties defendant. It may be conceded that as to Tracts 1, 2, and 3, this contention is sound. Mrs. Burns owned these tracts when a part of the tax in arrears was assessed and even now she owns a life estate therein. E. J. Burns is now the owner subject to the life estate of Mrs. Burns, binder G-. S., *702 105-391, both, are proper parties to ail action to .foreclose tax liens thereon. But Mrs. Burns owns Tract 4. E. J. Burns does not now have and never possessed any interest therein. He is neither a necessary nor a proper party to the action in so far as it relates to this tract. The same condition in reverse applies to Tract 5. Mrs. Burns has never had any interest therein. Thus the action to foreclose lien on Tract 4 does not affect E. J. Burns and the action to foreclose lien on Tract 5 does not affect Mrs. Burns. It is apparent then there is a misjoinder of actions and of parties. There can be no division of the action under G. S., 1-132. The whole must fall. Beam v. Wright, 222 N. C., 174, 22 S. E. (2d), 270; Wingler v. Miller, 221 N. C., 137, 19 S. E. (2d), 247; Frederick v. Ins. Co., 221 N. C., 409, 20 S. E. (2d), 372; Burleson v. Burleson, 217 N. C., 336, 7 S. E. (2d), 706; Vollers Co. v. Todd, 212 N. C., 677, 194 S. E., 84; Smith v. Land Bank, 213 N. C., 343, 196 S. E., 481; Lucas v. Bank, 206 N. C., 909, 174 S. E., 301; Ellis v. Brown, 217 N. C., 787, 9 S. E. (2d), 467; Sasser v. Bullard, 199 N. C., 562, 155 S. E., 248; Shuford v. Yarborough, supra; Bank v. Angelo, 193 N. C., 576, 137 S. E., 705; Rose v. Warehouse Co., 182 N. C., 107, 108 S. E., 389; Taylor v. Ins. Co., 182 N. C., 120, 108 S. E., 502; Roberts v. Mfg. Co., 181 N. C., 204, 106 S. E., 664. As to Tract 4, E. J. Burns is not the owner or a lienholder or listing taxpayer. Nor would he be entitled to be made a party to a court action to foreclose a mortgage thereon. As to Tract 5, the same is true in respect to Mrs. Burns. Hence the complaint is not saved by the provisions of G. S., 105-391. There was error in the order overruling the demurrer. Reversed.