Burton v. Durham Realty &. Ins. Co

Citation125 S.E. 3
Decision Date29 October 1924
Docket Number(No. 343.)
CourtUnited States State Supreme Court of North Carolina
PartiesBURTON. v. DURHAM REALTY &. INS. CO. et al.

(188 N. C.)

Appeal from Superior Court, Durham County; Cranmer, Judge.

Action by J. W. Burton against the Durham Realty & Insurance Company and another. Judgment on case submitted, and both parties appeal. Action dismissed.

Cause submitted under C. S. § 626. The purpose of this proceeding is to ascertain whether or not good and valid titles have passed between the parties for two certain lots of land, situate in Durham county, just outside the limits of the city of Durham. The cause is submitted on an agreed statement of facts. There was a judgment of the Superior Court declaring the titles invalid, from which both sides appeal.

Brogden, Reade & Bryant, of Durham, for plaintiff.

W. S. Lockhart, of Durham, for defendant Mangum.

R. H. Sykes, of Durham, for defendant Durham Realty & Insurance Co.

STACY, J. The two adjacent lots in question, Nos. 1 and 2, were sold by the Durham Realty & Insurance Company to its codefendant, C. A. Mangum, who in turn sold them to the plaintiff. Later the Durham Realty & Insurance Company repurchased lot No. 2, which lot it now owns, and lot No. 1 is owned by the plaintiff.

In the spring of the present year the plaintiff offered to sell his lot to one Joseph Simpson, not a party herein, who declined to purchase because of an alleged defect in plaintiff's title. The court is asked to say that plaintiff has a good title to lot No. 1, and that the defendant Durham Realty & Insurance Company has a good title to lot No. 2.

It is apparent that there is no "question in difference" (C. S. § 626) between the parties. Both sides are asking for the same thing, and everybody is interested in the same kind of judgment. The proceeding, in reality, is one to obtain the advice or opinion of the court, and no more. We are only asked to say whether the titles are good or bad, upon the facts agreed, and there is no one present claiming adversely to any of the parties or questioning their titles. While upon the facts presented the titles would seem to be valid, we must dismiss the proceeding for want of a real controversy. Kistler v. R. R., 164 N. C. 365, 79 S. E. 676; Parker v. Bank, 152 N. C. 253, 67 S. E. 492; Board of Ed. v. Kenan, 112 N. C. 567, 17 S. E. 485; Millikan v. Pox, 84 N. C. 107; Blake v. Askew, 76 N. C. 325; Bates v. Lilly, 65 N. C. 232.

Speaking to a similar situation in McKethan v. Ray, 71 N. C. 165, Pearson, C. J.,...

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14 cases
  • General Insurance Co., of America v. Ham, State Insurance Commissioner
    • United States
    • Wyoming Supreme Court
    • 5 Mayo 1936
    ... ... 445. 131 A. 265; Revis v. Daugherty, ... (Ky.) 287 S.W. 28; Burton v. Realty & Insurance ... Company, (N. C.) 125 S.E. 3; Patterson v ... 543; Trust Company ... v. McCallister, (Ore.) 299 P. 319; Ins. Company v ... Baker, (Kan.) 244 P. 862; Chung Mee Company v ... ...
  • Washington-Detroit Theater Co. v. Moore
    • United States
    • Michigan Supreme Court
    • 6 Marzo 1930
    ...28;Patterson v. Patterson, 144 Va. 113, 131 S. E. 217;Tanner v. Boynton Lumber Co., 98 N. J. Eq. 85, 129 A. 617;Burton v. Durham Realty & Ins. Co., 188 N. C. 473, 125 S. E. 3;Ezzell v. Exall, 207 Ky. 615, 269 S. W. 752;Shearer v. Backer, 207 Ky. 455, 269 S. W. 543;Kelly v. Jackson, 206 Ky. ......
  • McLeod v. McLeod
    • United States
    • Michigan Supreme Court
    • 1 Diciembre 1961
    ...Ex'rs] v. Patterson, 144 Va. 113, 131 S.E. 217; Tanner v. Boynton Lumber Co., 98 N.J.Eq. 85, 129 A. 617; Burton v. Durham Realty & Ins. Co., 188 N.C. 473, 125 S.E. 3; Ezzell v. Exall, 207 Ky. 615, 269 S.W. 752; Shearer v. Backer, 207 Ky. 455, 269 S.W. 543; Kelly v. Jackson, 206 Ky. 815, 268......
  • Thomas v. Riggs
    • United States
    • Idaho Supreme Court
    • 16 Diciembre 1946
    ... ... 450; Stewart v. Herton, 125 ... Neb. 210, 249 N.W. 552; Burton v. Durham R. & I ... Co., 188 N.C. 473, 125 S.E. 3; Associated ... ...
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