Thames v. . Jones

Davis, J., (after stating the facts). The demurrer cannot be sustained upon any one of the grounds stated. Actions for the recovery of real property must be brought in the county in which the subject of the action, or some part thereof, is situated. It may be, that some of the tracts are wholly in the county of Bladen, and are in the separate possession of some of the defendants, but the complaint alleges broadly, that the defendants are in possession and wrongfully withhold the said land, and it is sufficient to give jurisdiction to the Superior Court of Cumberland *126 county, and this disposes of the first alleged ground of demurrer. Where the parties, as manifestly appears in this case, “may be very numerous, and it may be impracticable to bring them all before the Court, one or more may sue or defend for the benefit of the whole.” The Code, §185; Bronson v. Insurance Company, 85 N. C., 414. It was clearly within the power of the Court to make the order permitting the persons named as plaintiffs to sue for all, and the persons named as defendants, to defend for all. As to liow far the judgment may affect persons made parties under this order, we express no opinion. But independent of this, any ■one or more of several tenants in common may sue for the recovery of the possession of land wrongfully withheld. Young v. Greenlee, 90 N. C., 319, and the cases there cited. This disposes of the second ground of demurrer. Upon an examination of the complaint, we are unable to •discover the misjoinder of several causes of action, made the third ground of demurrer. It is true, that the plaintiffs allege title under the will of Joseph Thames, an'd that the defendants claim under conveyance from John T. Gilmore, but these are unnecessary statements of the chain of title relied on by the plaintiffs and defendants respectively, and .are not alleged as causes of action. They are unnecessary, and might well have been omitted or stricken out, but they furnish no ground for demurrer. Best v. Clyde, 86 N. C., 4. And this disposes of the third ground of demurrer. The fourth ground of demurrer cannot be sustained. The complaint does state ground sufficient to constitute a cause of action, and the objection that the complaint does not state which tracts are in possession of each defendant, cannot be taken by demurrer. The complaint alleges broadly, “that the defendants are unlawfully in the possession of the aforesaid lands, and wrongfully withhold the possession thereof from the plaintiffs,” and if any of the *127 •defendants are not in possession of all, they can disclaim as to the part not claimed. There was error. Let this be certified, and the case remanded, to be proceeded with according to law. Error. Reversed.