#### T. P. ROGERS and E. M. CLAYTON and BELVA CLAYTON, His Wife v. JOHN ROGERS.

(Filed 27 May, 1926.)

1. Actions — Misjoinder—Demurrer—Dismissal—Pleadings—Consent.

A proceeding under tlie provisions of O. S., cii. 9, to establish, the true dividing line between adjoining owners of land, will be dismissed upon demurrer for misjoinder of parties and causes of action that involve the title or interests of others not related to the matter in dispute, and which are entirely independent thereof. In this case it appearing that no demurrer had been interposed and that the answer had been filed, it is suggested that by consent of the parties they may proceed with their original controversy if so advised.

*512. Appeal and Error — Supreme Court — Pleadings.

An answer filed in the Superior after the case is constituted in the Supreme Court on appeal can have no effect on the jurisdiction of the Supreme Court.

Appeal by defendant from *Siler, Emergency Judge,*at February Term, 1926, of CHEROKEE.

*Dillard & Hill for plaintiff.*

*M. W. Bell for defendant.*

AdaMs, J.

Tbe plaintiffs instituted a proceeding before the clerk to establish a disputed boundary line as provided in C. S., 9. They filed their petition, the defendant filed an answer, and the cause was put on 'the civil docket for trial in term. Thereafter the plaintiffs filed an amendment to their complaint and the defendant demurred. The demurrer was overruled and the defendant excepted. In the amended complaint it is alleged: 1. That a part of the controversy relates to the dividing line between the lot numbered 19 and the two lots numbered 24 and 26; that T. P. Eogers has a life estate in No. 24 and that the defendant has no interest therein but claims that the line is 13 or 14 poles south of its true location, and that he has taken possession of a part thereof and wrongfully withholds possession. 2. That there is a tract of about four acres situated south of the true line, which upon the death of Aneil Eogers descended to his three sons Eichard, John, and T. P. Eogers, and that the defendant has taken possession of it and excluded his cotenants. 3. That the defendant is in possession of a half-acre lot and a dwelling thereon and wrongfully withholds possession from B. B. Clayton who is the owner thereof. 4. That the defendant has unlawfully taken possession of a part of No. 24 and wrongfully withholds possession from T. P. Eogers, one of the plaintiffs.

The relief sought is the location of the dividing line as contended by the plaintiffs; that T. P. Eogers be declared to be the owner of lot No. 24 and B. B. Clayton of No. 26, excepting the four-acre lot, and of the small lot of which the defendant is now in possession; that the plaintiffs be put into possession of their respective lots; that Eichard L. Eogers, T. P. Eogers and the defendant be decreed tenants in common of the four-acre tract; that T. P. Eogers recover of the defendant $175 as damages for the wrongful withholding of his land; that B. B. Clayton recover $75; and that the defendant pay the costs of the action.

It is alleged in effect that neither B. B. Clayton nor Eichard L. Eogers has any interest in No. 24; that Eichard, John, and T. P. Eogers are joint owners of the four-acre lot; that B. B. Clayton is the *52owner of a large part of No. 26, including tbe balf-acre lot; and that T. P. Rogers bas no interest therein. B. B. Clayton bas no interest in tbe damages wbicb T. P. Rogers seeks to recover, and T. P. Rogers bas no interest in tbe damages sought by B. B. Clayton. In substance two distinct causes of action are joined to recover separate tracts of land from tbe defendant — tbe ownership of tbe tracts being not joint, but several. It would seem, therefore, that tbe plaintiffs as to tbe recovery of tbe different lots have no community of interest and that *there is*a misjoinder of parties and of causes of action. *Edgerton v. Powell, 72*N. C., 64; *Logan v. Wallis, 16*N. C., 416; *Thigpen v. Cotton Mills,*151 N. C., 97; *Campbell v. Power Co.,*166 N. C., 488. In such case tbe usual practice is to sustain tbe demurrer and dismiss tbe action. *Roberts v. Mfg. Co.,*181 N. C., 204; *Shore v. Holt,*185 N. C., 312; *Weaver v. Kirby,*186 N. C., 387; *Bickley v. Green,*187 N. C., 772. In this case, however, tbe defendant filed an answer, not a demurrer, to tbe original petition and demurred to tbe “amendment to tbe complaint.” We think tbe demurrer should be sustained; but if tbe plaintiffs are willing to proceed on tbe original petition and answer and to withdraw or waive the matters set up in tbe “amendment,” wbicb embraces matters outside the-original complaint, we see no valid reason why they should not be permitted to do so. Tbe answer put in issue tbe location of tbe line, — tbe purpose for wbicb tbe proceeding was brought; and if tbe plaintiffs succeed in establishing the line as they contend a subsequent inquiry as to damages in separate actions would' not be precluded. If they do not see fit to proceed on tbe priginal pleadings tbe action should be dismissed without prejudice to tbe parties.

After tbe appeal was taken and while tbe case was pending here tbe defendant as a matter of precaution filed an answer to tbe amendment; but of course this could have no effect on tbe jurisdiction of this Court.

Tbe judgment overruling tbe demurrer is

Reversed.