Cutler v. Winfield

85 S.E.2d 913 (1955)

241 N.C. 555

C. B. CUTLER v. H. G. WINFIELD, Jr., Frank Kugler, Mary M. Jennette, Harold E. Yert, W. J. Dunn, W. D. Welch, Jr., Wilson Leggett, W. B. Carter, and Tennys Thornton Bowers, as Trustees of the Washington City School Administrative Unit, and Beaufort County, Beaufort County Board of Education, and the Trustees of the Washington Academy, John A. Wilkinson, Guardian ad litem.

No. 21.

Supreme Court of North Carolina.

March 2, 1955.

*915 John A. Mayo, Washington, D. C., for plaintiff-appellant.

John A. Wilkinson, Guardian ad litem for Trustees of Washington Academy.

W. B. Carter, Washington, D. C., for appellees.

WINBORNE, Justice.

At the threshold of this appeal the admitted fact that the Trustees of the Washington Academy are dead, and there are no successors to them, presents an obstacle to a complete and proper decision in the present state of the record and case on appeal.

While the record shows that John A. Wilkinson is appointed guardian ad litem for the Trustees of Washington Academy, no such representation by guardian ad litem is sanctioned by lawand as stated by Johnson, J., in McPherson v. First & Citizens Nat. Bank, 240 N.C. 1, 81 S.E.2d 386, 397, `The rule is that, in the absence of statute, the capacity to be sued exists only in persons in being". Indeed, with this Court, in the absence of a statute, a non-existent person cannot be made a defendant in an action and be represented by a guardian ad litem,and no statute is called to our attention. Hence this Court, in the exercise of its supervisory powers over lower courts, N.C.Const. Art. IV, Sec. 8; Elledge v. Welch, 238 N.C. 61, 76 S.E.2d 340; McPherson v. First & Citizens Nat. Bank, supra, will take cognizance ex mero motu of such lack of authority in a named guardian ad litem under such circumstances.

Moreover, the Trustees of Washington Academy being dead, and there being no successors to them, to whom would title revert in the event the purported reversionary *916 clause in the deed to these Trustees be effective? It might be that an escheat to the University of North Carolina would take place. N.C.Const. art. IX, Sec. 7; G.S. § 116-20. Hence it seems clear that the University of North Carolina should be made a party to this action so that any claim or interest it has or may not have in the old Washington Academy property, by escheat, may be adjudicated. Too, it may be there are others who might claim an interest in the property in the event the title reverts.

Therefore, this Court, of its own motion, orders that the cause be remanded to the Superior Court of Beaufort County, North Carolina, to the end that the University of North Carolina, and all others having or claiming to have an interest in the property in question may be made parties defendant to this action, and served with process, and permitted to plead all in accordance with law and procedure.

Error and remanded.