Peel v. Moore

94 S.E.2d 491 (1956)

244 N.C. 512

M. L. PEEL v. Maurice S. MOORE.

No. 38.

Supreme Court of North Carolina.

September 26, 1956.

*494 Peel & Peel, Williamston, for defendant-appellant.

Clarence W. Griffin, Williamston, for plaintiff-appellee.

PARKER, Justice.

The sufficiency of a deed to convey title can be adjudicated by the submission of a controversy without action under G.S. § 1-250. Griffin v. Springer, 244 N.C. 95, 92 S.E.2d 682.

This Court said in Consolidated Realty Corp. v. Koon, 216 N.C. 295, 4 S.E.2d 850, 851: "All persons having an interest in the controversy must be parties, to the end that they may be concluded by the judgment, and the controversy be finally adjudicated as in the case of an action instituted in the usual way. McKethan v. Ray [71 N.C. 165]."

Alton Stallings never married, and at his death his nearest collateral relatives capable of inheriting were first cousins of his mother's blood and first cousins of his father's blood. Of all these first cousins only two are parties to this proceeding: plaintiff, a first cousin of the father's blood, and defendant, a first cousin of the mother's blood. Plaintiff and defendant have agreed that plaintiff is a first cousin of the father's blood and that, if plaintiff inherited from Alton Stallings any interest in the Ball Gray Farm, it is a undivided interest. All the other first cousins of Alton Stallings at his death, who are certainly interested in the controversy, have made no such agreement; they have not agreed that plaintiff is a first cousin of Alton Stallings; and they have not agreed that, if he is a first cousin and if he has inherited anything, it amounts to a undivided interest. A judgment in this proceeding to which these other first cousins are strangers with no opportunity to be heard is not binding upon them. Thomas v. Reavis, 196 N.C. 254, 156 S.E. 226.

In the following cases of controversies without action involving title to land, when it appeared to us there could not be a complete and final determination of the rights of the parties interested in the absence of some of the interested parties, we have set aside the judgments rendered and remanded the cases, or remanded the cases, so that the cases can come before the court properly constituted in respect to parties and to the judgment demanded. McKethan v. Ray, 71 N.C. 165; Campbell v. Cronly, 148 N.C. 136, 61 S.E. 1134; Id., 150 N.C. 457, 64 S.E. 213; Brinson v. McCotter, 181 N.C. 482, 106 S.E. 215; Wagoner v. Saintsing, 184 N.C. 362, 114 S.E. 313; Thomas v. Reavis, supra; Consolidated Realty Corp. v. Koon, supra. See also Waters v. Boyd, 179 N.C. 180, 102 S.E. 196.

It is to be noted that the legal title to the three-fifths undivided interest in the Ball Gray Farm was taken in the name of M. S. Moore, guardian of Alton Stallings, when the Fleming deed of trust was foreclosed.

All the first cousins of Alton Stallings at his death are necessary parties to a complete determination of this controversy. M. S. Moore in his capacity as guardian is a proper, if not a necessary, party. Being a consent proceeding they cannot be brought in against their will. If they so desire, all can come in and join in the submission of the controversy without action upon the facts now stated, or all of them can agree upon additional facts or a new and different statement of facts, and submit a controversy without action. Wagoner v. Saintsing, supra; Consolidated Realty Corp. v. Koon, supra. If all cannot agree upon the facts so as to submit a controversy without action, the facts can be established in a civil action to which all are parties. Thomas v. Reavis, supra.

*495 Until that is done, we refrain from discussion of the facts appearing of record.

The judgment below is set aside, and the case remanded to the end that further proceedings be had as the law directs and the rights of the parties require.

Error and remanded.

JOHNSON, J., not sitting.