Consol. Realty Corp. v. Koon, 90.

• Decision Date: 11 October 1939
• Docket Number: No. 90.,90.
• Citation: 4 S.E.2d 850,216 N.C. 295
• Court: North Carolina Supreme Court
• Parties: CONSOLIDATED REALTY CORPORATION. v. KOON.

4 S.E.2d 850

216 N.C. 295

CONSOLIDATED REALTY CORPORATION.

v.KOON.

No. 90.

Supreme Court of North Carolina.

Oct. 11, 1939.

Appeal from Superior Court, Buncombe County; J. W. Pless, Jr., Judge.

Submission of a controversy without action by the Consolidated Realty Corporation against E. S. Koon to determine whether the plaintiff could make a valid fee-simple title to the defendant for the lands in controversy. From the judgment, the defendant appeals.

Judgment set aside, and case remanded.

This is a controversy without action under C.S. § 626.

The case was here on former appeal and remanded to the end that the court below make disposition of the case in accordance with the opinion then rendered. 215 N.C. 459, 2 S.E.2d 360.

The record as constituted on this appeal contains affidavits of parties, statement of facts supported by exhibits, affidavits and admissions of counsel, findings of fact by the Judge, and judgment. The case comes here for the purpose of determining whether the plaintiff can "make a valid fee simple title" to the defendant for the land in controversy.

In the statement of agreed facts it is stipulated: "That the court shall find the facts from the agreed statement of facts and the exhibits thereto attached, and suchother evidence as is heard by the Court, and that the findings of fact by the Court shall be binding on all parties hereto".

It further appears that the case was reheard by the judge below upon "the agreed statement of facts, exhibits, and affidavits thereto attached, and admissions of counsel", from which the court finds facts touching the whole controversy, in part as set forth in the statement of agreed facts, and in part from evidence before it. It also appears that from facts found from evidence before it the court concludes that certain named persons, who are not parties to the action, are estopped to challenge the validity of a deed in controversy.

Upon the findings of fact the court, being of opinion that the plaintiff is the owner in fee of the land in controversy, and can convey such title to the defendant, rendered judgment for specific performance of the contract of sale and purchase between the parties.

Defendant appeals to the Supreme Court and assigns error.

Reed Kitchin, of Asheville, for appellant.

Daniel M. Hodges, of Asheville, for appellee.

WINBORNE, Justice.

Upon this record the judgment below cannot be sustained.

The statute, C.S. § 626, provides that: "Parties to a question in difference which might be the subject of a civil action may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought". It further provides that: "The judge shall hear and determine the case, and render judgment thereon as if an action were pending".

The purpose of the statute is to dispense with the formalities of a summons, complaint and answer, and to permit the case to be submitted to the court on statement of agreed facts. McKethan v. Ray, 71 N.C. 165.

The statute must be strictly construed. Waters v. Boyd, 179 N.C. 180, 102 S.E. 196. And, in submitting a case under it, the procedure, being statutory, must be complied with to render the judgment valid. Mcintosh P. & P. 556. Only facts pertinent to the controversy and with respect to which the parties are in agreement have a place in the case. Evidence from which other facts may be found has no place there.

The case is to be heard only upon the facts...