Smith v. Gudger, 133 N.C. 627 (1903)

Dec. 15, 1903 · Supreme Court of North Carolina

133 N.C. 627

SMITH v. GUDGER.

(Filed December 15, 1903.)

1. JURISDICTION — Superior Court — Clerks of Courts — Appeal—Acis 190S, eh. 99.

The clerk of the superior court has no jurisdiction of an action to sell property for reinvestment, etc., under acts 1903, ch. 99, but when carried to the superior court on appeal it will be retained for a hearing.

2. REMAINDERS — Estates ■— Life Estates — Parties — Contingent Remainders — Acis 1903, eh. 99.

Persons not in being who may have an interest in property invested, in an action for the sale thereof and reinvestment are not necessary parties.

ActioN by E. A. Smith against J. H. Gudger and others, beard by Judge H. B. Jones, at November Term, 1903, of tbe Superior Court of Buncombe County. Erom a judgment for tbe plaintiff tbe defendants appealed.

Whitson & Keith, for tbe plaintiff.

G. A. Reynolds and J. U. Merrimon, for tbe defendants.

Connor, J.

Tbe facts set out in tbe complaint and admitted by tbe demurrer bring tbis case clearly within tbe principle announced by tbis Court in Springs v. Scott, 132 N. C., 548, and Hodges v. Lipscombat tbe present term. Tbe allegations in regard to tbe condition of tbe property, its non-productive character and the heavy burdens of taxation illustrate very strongly tbe necessity for tbe recent legislation and tbe rulings of tbis Court in regard thereto. We do not deem it necessary to discuss further tbe authorities or principles upon which the cases cited as controlling tbis record are founded. We think, however, that tbe plaintiff erroneously brought this proceeding before the Clerk. It is not a special proceeding for partition, but an equitable proceeding for the sale of property and reinvestment of the proceeds formerly cognizable in a court of equity, as set out in Watson v. Watson, 56 N. C., 400. We do not think that this equitable power is conferred upon the Clerk. The cause, however, being now in the Superior Court by appeal, as in the case of Springs v. Scott, we can see no reason why that Court could not retain control and make all of the necessary orders in the premises. To the suggestion in the demurrer that all the persons who might, in any contingency, have an interest therein are not made parties, it is sufficient to say that the act of 1903 was passed expressly to meet the difficulty therein suggested. Such parties, if any, who shall hereafter come into being who may have any interest in the property are represented by all parties now m esse. The question is fully discussed in the opinion in Springs v. Scott. We desire to emphasize what we then said with regard to the duty of the Court to be diligent to ascertain the facts in each case and to proceed with caution in making orders therein. By so doing, as we there said, “the purpose of the Legislature will be accomplished without doing violence to, but rather in accordance with, the principles of our jurisprudence, and the preservation and protection of the rights of the parties.” We would suggest that before further proceedings are had in this cause testimony be taken and the facts affirmatively found in respect to the allegations in the complaint. The cause should be docketed in the Superior Court and orders and decrees made in accordance with the practice of the Court at regular term thereof and signed by the Judge. Thus modified the judgment of the Court below is

Affirmed.