Court of Appeals of North Carolina, 1969

Barnes v. Barnes

Barnes v. Barnes
Court of Appeals of North Carolina · Decided August 27, 1969 · Britt, Mallard, Parker
6 N.C. App. 61; 169 S.E.2d 236; 1969 N.C. App. LEXIS 1141

Barnes v. Barnes

Opinion of the Court

PARKER, J.

The sole question presented is whether the trial court erred in overruling the demurrer interposed for misjoinder of parties and causes. The plaintiffs allege that certain accounts, some claimed jointly by Mallie G. Barnes and Billie Moore, and one claimed individually by Billie Moore, are in- fact assets of the estate of George W. Barnes, deceased, in which plaintiffs would share but for the wrongful actions of the defendants. Although the plaintiffs allege that these funds were deposited on separate occasions and in different accounts, they also name both Mallie G. Barnes and Billie Moore as having participated in all of the transactions. Plaintiffs allege the same conduct as to each defendant as to all accounts.

The alleged fraud of Mallie Barnes and Billie Moore is one of the grounds for the plaintiffs’ complaint. In such case, the plaintiffs should be allowed to join as defendants all who participated in the alleged fraudulent acts as well as all who, with knowledge, received benefits from such acts. Lee v. Thornton, 171 N.C. 209, 88 S.E. 232; Fisher v. Trust Co., 138 N.C. 224, 50 S.E. 659.

In the alternative, the plaintiffs allege that George W. Barnes was prevented from leaving a part of these funds for distribution to them under the terms of his will by reason of his own mistake and the mutual mistake of Mallie G. Barnes and Billie Moore. The complaint alleges that the name of Billie Moore appears on the signatoe cards on all of the accounts in question and that the name of Mallie G. Barnes appears with Billie Moore on all except one account. All of these funds were deposited by George W. Barnes. The plaintiffs allege that but for the mutual mistake of the deceased and the two defendants, all of these funds would now be a part of the funds of the estate of George W. Barnes in which they would share under the terms of his will.

“Joinder is proper when plaintiffs are heirs or legatees or next of kin, as long as all the relief sought is directly connected with obtaining plaintiff’s shares of the estate assets, and as long as there is some central, unifying thread — such as the provisions of a trust agreement or will, or a misapplication of funds by the principal defendant with which the other defendants are somehow connected.” *641 McIntosh, N.C. Practice 2d, § 650; McDaniel v. Fordham, 261 N.C. 423, 135 S.E. 2d 22; Ezzell v. Merritt, 224 N.C. 602, 31 S.E. 2d 751; Bellman v. Bissette, 222 N.C. 72, 21 S.E. 2d 896.

In the present case the alleged joint conduct of the two individual defendants, who, so plaintiffs allege, occupied a position of trust toward the deceased, furnishes a sufficient “unifying thread,” and joinder was proper.

The order overruling the demurrer is

Affirmed.

MallaRd, C.J., and Britt, J., concur.

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