Griggs v. . Griggs , 218 N.C. 574 ( 1940 )

Defendants' demurrer to the complaint was overruled and defendants appealed. The defendants demurred to the complaint on three grounds: (1) That the complaint did not state facts sufficient to constitute a cause of action; (2) that no cause of action was alleged as to defendant Coxe, and that there was a defect of parties defendant; (3) that several causes of action were improperly joined.

Without undertaking to quote the complaint verbatim, it may be briefly stated that it contains charges of fraud and conspiracy to defraud on the part of the defendant H. Battle Griggs and the defendant Coxe whereby the plaintiffs were induced to execute a deed to defendant H. Battle Griggs containing description of valuable property not intended to be conveyed; that plaintiffs were by fraud and trickery induced to believe that the deed conveyed only certain lots in Wadesboro of the value of $2,000 (which lots plaintiffs intended to convey for that price), whereas, without their knowledge or consent, the deed so fraudulently caused to be executed included in the description also plaintiffs' interest in certain other properties valued at $15,000, and that this fraudulent scheme was accomplished to plaintiffs' injury by means of artifice and misrepresentations made with intent to deceive. The complaint sets out the manner and means by which this was alleged to have been accomplished.

Plaintiffs further alleged that instead of paying the $2,000 consideration for the conveyance of the two lots intended to be conveyed, or securing same as it had been fraudulently represented would be done, defendant H. Battle Griggs executed four notes of $500.00 each, and that defendant Coxe wrongfully retained one of these $500 notes and refused to deliver it to the plaintiffs, and that the other defendants refused to pay the notes, and that this was all part of a fraudulent scheme and conspiracy to deprive plaintiffs of the property wrongfully included in the conveyance as well as of the price of that intended to be conveyed.

It is apparent that a cause of action for the correction of the deed by striking therefrom the description of the property alleged to have been thus fraudulently included, has been stated, and that the defect and omission in the complaint pointed out in the opinion of this Court inGriggs v. Griggs, 213 N.C. 624, 197 S.E. 165, has been supplied by more definite allegations in the present action.

It is also apparent that the allegations of fraud and conspiracy to defraud on the part of defendant Coxe and of the trickery and misrepresentations alleged to have been used by him, together with allegations that, as a part of this fraudulent scheme as alleged, defendant Coxe wrongfully holds one of the $500 notes, are sufficient to bring him within the sphere of action complained of, and to connect him with the general scheme alleged. There was no "defect of parties" occasioned by the inclusion of defendant Coxe as party defendant. Shuford v. Yarborough,197 N.C. 150, 147 S.E. 824.

Nor may the complaint be overthrown on the ground that, in the action for fraud on the part of the defendants in inducing plaintiffs to execute the deed sought to be corrected, there was also a prayer for judgment on the notes executed by H. Battle Griggs. It was alleged that there was a general scheme and conspiracy to obtain plaintiffs' other property and to fraudulently deprive them of the purchase price of the lots intended to be conveyed for cash or upon security. All these matters, according to the allegations of the complaint, arose out of the same transaction or transactions connected with the same subject of action. C. S., 507. The rule is that where the several causes of action set out in the complaint are not entirely distinct and unconnected, and arise out of the same transaction or series of transactions, forming one course of dealing, all tending to a single end, demurrer for misjoinder of parties and causes of action will not lie. Cotton Mills v. Mfg. Co., ante, 560; Daniels v. DuckIsland, 212 N.C. 90, 193 S.E. 7; Barkley v. Realty Co., 211 N.C. 540,191 S.E. 3; Leach v. Page, 211 N.C. 622, 191 S.E. 349; Trust Co. v.Peirce, 195 N.C. 717, 143 S.E. 524; Cotton Mills v. Maslin, 195 N.C. 12,141 S.E. 348; Lee v. Thornton, 171 N.C. 209, 88 S.E. 232. In the language of Stacy, C. J., in Trust Co. v. Peirce, supra: "A connected story is told and a complete picture is painted of a series of transactions, forming one general scheme, and tending to a single end. This saves the pleading from the challenge of the demurrers."

We have considered only the facts alleged by the plaintiffs in their complaint. For the purpose of the demurrer they are deemed admitted. Ins.Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369. By answer and proof a different story may be told. But upon these allegations we conclude that the court below properly overruled the demurrer, and that the judgment must be

Affirmed.