The plaintiffs and the defendant in this action, as was said of the parties in Poore v. Poore, 201 N. C., 791, 161 S. E., 532, have misconceived both the purpose and the scope of chapter 102, Public Laws of North Carolina, 1931, which is entitled “An act to authorize declaratory judgments.” The bill which was enacted by the General Assembly of this State, was approved by the National Conference of Commissioners on Uniform State Laws, in 1922, and has been adopted and is now in force in at least twenty states.' See Uniform Laws Annotated, Vol. 9, page 120. The act has been in full force and effect in this State since its ratification on 12 March, 1931.
Prior to its enactment, the courts of this State had no jurisdiction to render advisory opinions with respect to, or judgments declaring the rights and liabilities of parties to actions or proceedings on an agreed statement of facts. Hicks v. Greene Co., 200 N. C., 73, 156 S. E., 164. Such jurisdiction ivas not conferred by C. S., 626, Burton v. Realty Co., 188 N. C., 473, 125 S. E., 3. Actions or proceedings in which on the facts agreed there was no real controversy as to questions of law arising *55on snob facts, which might be the subject of a civil action, were dismissed, for the reason that the Court was without jurisdiction to determine such questions. Hicks v. Greene Co., supra, Burton v. Realty Co., supra. The distinction between C. S., 626, and chapter 120, Public Laws of .North Carolina, 1931, is obvious. In Light Co. v. Iseley, 203 N. C., 811, 167 S. E., 256, it is said: “It need not be alleged in the complaint or shown at the trial, in order that the Court shall have jurisdiction of an action instituted under the authority and pursuant to the provisions of chapter 120, Public Laws of North Carolina, 1931, that the question in difference between the parties is one which might be the subject of a civil action at the time the action was instituted. It is not required for purposes of jurisdiction that the plaintiff shall allege or show that his rights have been invaded, or violated by the defendants, or that the defendants have incurred liability to him, prior to the commencement of the action. It is required only that the plaintiff shall allege in the complaint and show at the trial, that a real controversy, arising out of their opposing contentions as to their respective legal rights and liabilities under a deed, will or contract in writing, or under a statute, municipal ordinance, contract or franchise, exists between or among the parties, and that the relief prayed for will make certain that which is uncertain, and secure that which is insecure. See Walker v. Phelps, 202 N. C., 344, 163 S. E., 727.”
In the instant ease, it does not appear from the facts alleged in the complaint that the plaintiffs or the defendant, who is each a party to the action in his or her individual capacity, have any rights, status or legal relations which are involved in the question of law which it is sought to have determined by a declaratory judgment. There is no controversy between the plaintiffs and the defendant as to their respective rights, status, or legal relations, with respect to the property now held by the corporation and subject to a charitable trust. The corporation created by the General Assembly of this State, and existing under the name of the trustees of Rex Hospital, is not a party to the action, although the question submitted to the court for the determination involves the powers of the corporation, and not the powers of the individuals who constitute the corporation.
We are of opinion that on the facts alleged in the complaint, admitted in the answer, and found by the court, the court had no jurisdiction of the action, and for that reason the action should have been dismissed.
The failure of-the defendant to demur to the complaint did not confer jurisdiction of this action on the Superior Court, nor does such failure confer jurisdiction on this Court of defendant’s appeal from the judgment which was adverse to his contention. In Heller v. Shapiro, 208 Wis., 310, 242 N. W., 174, 87 A. L. R., 1201, dismissing the action, the *56Court said: “While tbe point was nowhere raised by the appellant in the course of the litigation, we consider the case is not one for declaratory relief, and that the trial court should not have entertained jurisdiction of it. We construe the declaratory relief statute as only justifying a declaration of rights upon an existing state of facts, not upon a state of facts that may or may not exist.”
We refrain from discussing the question which the parties to this action have sought to present for determination by a declaratory judgment. In Shannonhouse v. Wolfe, 191 N. C., 769, 133 S. E., 93, it was held that where trustees who held property impressed with a charitable trust had mortgaged the same to secure money which had been expended by the trustees in improving the property, the mortgage was void, for the reason that the trustees were without power to borrow the money and to secure the same by the mortgage. Whether in an action or proceeding to which the trustee of a charitable trust, corporate or otherwise, is a party, a court of equity has the power to authorize the trustee to borrow money to preserve the trust and to secure the same by a mortgage or deed of trust on the property, is too serious a question to be discussed or decided, until it shall be clearly presented to this Court. If the power exists, it is manifest, it should be exercised with great care, and only when it clearly appears that the preservation of the trust requires the trustees to borrow money which they can do only by securing its payment by a mortgage or deed of trust on property conveyed, devised, bequeathed or donated to the trustees in trust for a charitable use. We have been unable to find any case in which a court with equity jurisdiction has exercised such power. The power to authorize the sale of property impressed with a trust for charity, and the investment of the proceeds-of the sale in other property to be held under the same, or like a trust, does not necessarily include the power to authorize a mortgage or deed of trust on the property, which may result in the loss of the property upon the foreclosure of the mortgage or deed of trust.
Action dismissed.