Opinion
No. 43506.
October 11, 1965.
1. Demurrer — procedure when demurrer sustained — dismissal without prejudice.
Where special demurrer setting up nonjoinder of parties defendant and special demurrer directed only to that portion of amended bill of complaint that sought to charge one of the defendants with interest and attorneys' fees for failure to pay assessment made against him for maintenance of common property were sustained, and complainants refused to amend, dismissal of suit should have been without prejudice.
2. Parties — nonjoinder or misjoinder — raised by plea, not demurrer.
Nonjoinder or misjoinder of defendants cannot be raised by special demurrer in action on contract, either in Circuit Court or Chancery Court, but must be raised by plea as required by statute. Sec. 1458, Code 1942.
3. Equity — parties — nonjoinder — raised by plea, not by special demurrer.
Chancellor erred in sustaining special demurrer setting up that there had been nonjoinder of parties defendant in that eight persons who were signatory to original contract were not made parties defendant in suit for specific performance of contract and that they were necessary parties, since alleged nonjoinder was required to be raised by plea as required by statute. Sec. 1458, Code 1942.
4. Contracts — amendment — not effective.
Where contract relating to realty did not authorize or empower majority of landowners to impose interest or penalties on any landowner who did not pay assessment authorized for maintenance of common realty, resolution of majority of landowners imposing interest on one of the landowners for failure to pay assessment made against him amounted to amendment of contract, and was not effective.
5. Dismissal — sustaining of special demurrer — as not justifying.
Fact that special demurrer, which was directed to portion of amended bill of complaint that sought to charge one of the defendants with interest and attorneys' fees for failure to pay assessment made against him for maintenance of common property, was properly sustained did not justify dismissal of suit for specific performance of contract relating to land.
Headnotes as approved by Inzer, J.
APPEAL from the Chancery Court of Hinds County, W.T. HORTON, Chancellor.
John H. Stennis, Watkins, Pyle, Edwards Ludlam, Jackson, for appellant.
I. All necessary parties were joined either as complainants or defendants; the trial court committed error in sustaining special demurrer Number Two of the defendant, Dr. Ludwell C. Pierce.
A. The promises and covenants in the contract of March 31, 1955, were intended to and did run with the land therein described. Mendrop v. Harrell, 233 Miss. 679, 103 So.2d 418, 68 A.L.R. 2d 1013; Anno. 68 A.L.R. 2d 1022; 21 C.J.S., Covenants, Sec. 54; 7 Thompson, Real Property, Sec. 3152.
B. Protective covenants running with the land are for the protection of the owner or owners during whose tenure breach occurs, and may be enforced in equity by any such owner or group of owners against the individual covenantor whose obligation and liability is several, and not solely joint with some other covenantor. Cantieny v. Boze, 209 Minn. 407, 296 N.W. 491; Columbia College v. Lynch, 70 N.Y. 440, 24 Am. Rep. 615; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Fischer v. Magnolia Petroleum Co., 156 Kansas 367, 133 P.2d 95; Hannula v. Hacienda Homes, 34 Cal.2d 442, 211 P.2d 302; Hollingsworth v. Szczesiak, 32 Del. Ch. 274, 84 A.2d 816; Hooker v. Alexander, 129 Conn. 433, 29 A.2d 308; Kent v. Koch, 116 Cal.App.2d 759, 333 P.2d 411; Korn v. Campbell, 192 N.Y. 490, 85 N.E. 687; Leach v. Shelby, 58 Miss. 681; Lipscomb v. Jack (Miss.), 20 So. 883; Mendrop v. Harrell, supra; Merrionette Manor Homes Improvement Assn. v. Heda, 11 Ill. App.2d 186, 136 N.E.2d 556; Neponsit Property Owners Assn. v. Emigrant Industrial Savings Bank, 278 N.Y. 248, 15 N.E.2d 793; Osborne v. Crump, 57 Miss. 622; Parker v. Nightingale, 6 Allen (88 Mass.) 341, 83 Am. Dec. 632; Patty v. Williams, 71 Miss. 837, 15 So. 43; Peeples v. Yates, 88 Miss. 289, 40 So. 996; Rudy v. South Hampton Civic Club, 271 S.W.2d 431; Simmons v. Ingram, 60 Miss. 886; Southern Mineral Corp. v. Simmons, 111 F.2d 333, cert. den. 311 U.S. 688; Taylor v. Webb, 54 Miss. 36; Tuteur v. Brown, 74 Miss. 774, 21 So. 748; Windemere-Grand Improvement Protective Assn. v. American State Bank, 205 Mich. 539, 172 N.W. 29; Anno. 19 A.L.R. 2d 1274; 21 C.J.S., Covenants, Sec. 82b; Griffith's Mississippi Chancery Practice, Secs. 102, 108, 143; 7 Thompson, Real Property, Secs. 3164, Note 62, 3172.
II. The trial court committed error in determining as a matter of law that the University Plaza group lacked authority to impose upon one of its members penalties for nonpayment of assessments, or attorneys' fees in the suit for collection; the special demurrer Number Three of the defendant Pierce should have been overruled. Continental Turpentine Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 142 So.2d 200; Mendrop v. Harrell, supra; Neponsit Property Owners Assn. v. Emigrant Industrial Savings Bank, supra; 6 Am.Jur.2d, Associations and Clubs, Secs. 20, 25.
Edward L. Cates, Jackson, for appellee.
I. The trial court was correct in sustaining special demurrer Number Two of the defendant-appellee, Dr. Ludwell C. Pierce, for failure to join all necessary parties-defendant. Atlantic-Pacific Oil Co. v. Gas Development Co., 69 P.2d 750; Herring v. Volume Merchandise, Inc., 249 N.C. 221, 106 S.E.2d 197, 78 A.L.R. 2d 927; Secs. 269, 869, Code 1942; 15 C.J., Contracts, Sec. 1 p. 1211; 21 C.J.S., Covenants, Sec. 4 p. 886; 67 C.J.S., Parties, Secs. 24, 27 pp. 942, 944; Griffith's Mississippi Chancery Practice (2d ed.), Secs. 10, 28 pp. 30, 109.
II. The Chancellor was eminently correct in sustaining special demurrer Number Three, as the University Plaza group lacked authority to impose penalties for nonpayment of assessments, or attorneys' fees in the suit for collection. Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Continental Turpentine Rosin Co. v. Gulf Naval Stores Co., 244 Miss. 465, 142 So.2d 200; 13 C.J., Contracts, Sec. 3 p. 239.
This is an appeal by William B. Wiener and others from a decree of the Chancery Court of the First Judicial District of Hinds County, wherein the chancellor sustained two special demurrers to the amended bill of complaint. Appellants refused to amend, and a decree was entered finally dismissing the suit.
The record shows that appellants brought this suit for specific performance of a contract alleged to have been entered into by and between the complainants and defendants relative to the property located at 500 Woodrow Wilson Avenue in the City of Jackson. The amended bill charges that appellee Pierce has violated the terms and conditions of the contract, refuses to abide by its terms, and is threatening further violations. The prayer of the amended bill is that Pierce be required to specifically perform the contract, and that he be required so to do by the injunctive process of the court. The complainants also seek to recover interest and attorneys' fees.
(Hn 1) Pierce interposed four special demurrers to the amended bill of complaint. The demurrers involved on this appeal are the demurrers numbered 2 and 3. These demurrers were sustained by the chancellor. Special demurrer number 2 set up that there had been a nonjoinder of parties defendant in that eight persons who were signatory to the original contract were not made parties defendant and that they were necessary parties. Special demurrer number 3 was directed only to that portion of the amended bill of complaint that sought to charge Pierce with interest at one percent per month and attorneys' fees for the failure to pay an assessment made against him for maintenance of the common property. After these two demurrers were sustained, the complainants refused to amend, and a decree was entered finally dismissing the suit at the cost of complainants. This dismissal appears to be a dismissal with prejudice. If it was so intended, this was error. The proper judgment under these circumstances would be a dismissal without prejudice. Griffith, Mississippi Chancery Practice § 311 (2d ed. 1950).
The question we must determine here is whether the chancellor was correct in sustaining these two demurrers. Much has been said in the briefs relative to the question of whether this contract is a covenant running with the land. Under our view of this case, we do not deem it necessary to determine whether the contract is a covenant running with the land. There is no doubt that the suit is an action based upon a contract. This being true, appellee could not properly raise the nonjoinder of parties by a special demurrer in view of Mississippi Code Annotated section 1458 (1956), which provides:
The nonjoinder or misjoinder of a defendant in any action upon contract shall not be objected to by a defendant on the trial of the cause unless he give written notice thereof with his plea, stating the name of the person alleged to be omitted or improperly joined; and upon such notice being given, the court or judge, at any time before the trial of the cause, may allow an amendment to the pleading so as to obviate the objection, upon such terms as may be proper.(Hn 2) We held in the case of Campbell v. Farmers' Bank, 127 Miss. 668, 90 So. 436 (1921), that this section is applicable to chancery court proceedings. We also held in the case of Aven v. Singleton, 132 Miss. 256, 96 So. 165 (1923), that in an action on a contract nonjoinder or misjoinder of defendants could not be raised by a special demurrer. To the same effect is State Farm Mut. Auto. Ins. Co. v. McKay, 209 Miss. 706, 48 So.2d 349 (1950). The law is that in an action on a contract either in circuit or chancery court the nonjoinder or misjoinder of defendants cannot be raised by a special demurrer but must be raised by a plea as required by the statute. (Hn 3) It is therefore apparent that the chancellor was in error in sustaining special demurrer number 2.
(Hn 4) We hold that the chancellor was correct in sustaining special demurrer number 3. The contract sued upon did not authorize or empower the majority of the landowners to impose interest or penalties upon any member who did not pay the assessment authorized for the maintenance of the common property. The resolution which was passed by a majority of the members amounts to an amendment of the original contract. This could not be done except by agreement of all the parties in interest, including Pierce. (Hn 5) The fact that this demurrer was properly sustained did not justify a dismissal of the suit. The decree sustaining this demurrer should have precisely designated that part of the amended bill to which it was sustained. When this is done it does not amount to a dismissal of the suit, but eliminates only this feature of the suit. Griffith, Mississippi Chancery Practice § 312 (2d ed. 1950).
For the reason stated, this case must be reversed and remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Lee, C.J., and Jones, Brady and Smith, JJ., concur.