Hayes v. Turner, 8918SC650

• Decision Date: 15 May 1990
• Docket Number: No. 8918SC650,8918SC650
• Citation: 391 S.E.2d 513,98 N.C.App. 451
• Court: North Carolina Court of Appeals
• Parties: Herndon HAYES, Plaintiff, v. Lois TURNER, Defendant. and Marcia MICKENS, Intervenor Plaintiff, v. Herndon HAYES, Intervenor Defendant.

Page 513

391 S.E.2d 513

98 N.C.App. 451

Herndon HAYES, Plaintiff, v. Lois TURNER, Defendant. and Marcia MICKENS, Intervenor Plaintiff, v. Herndon HAYES, Intervenor Defendant.

No. 8918SC650.

Court of Appeals of North Carolina.

May 15, 1990.

Ivey, Ivey & Donahue by Robert L. McClellan, Greensboro, for plaintiff- and intervenor defendant-appellee.

Clark & Wharton by John R. Erwin and Stanley Hammer, Greensboro, for defendant- and intervenor plaintiff-appellants.

GREENE, Judge.

Lois Turner and Marcia Mickens appeal from summary judgment entered by the trial court for Herndon Hayes (Hayes) pursuant to Hayes's motion.

The evidence presented in support of and in opposition to the motion for summary judgment, viewed in the light most favorable to the nonmovants, tends to show that in 1943 Turner began living with and caring for Virgie Hayes (Virgie), who was Hayes' and Mickens' mother. In return for Turner's services Virgie promised to grant Turner, by will, a life estate in her home, located at 2200 South Benbow Road. On 13 September 1985 Virgie executed a Last Will and Testament devising to her son Hayes and her daughter Mickens the home located at 2200 South Benbow Road, subject to Turner's life estate. Virgie never revoked this will.

In February 1987, at the age of 76 years, Virgie was hospitalized for nearly a month because of complications of diabetes which required amputation of a leg. Prior to her discharge, Virgie who was blind, signed a deed conveying her Benbow Road home to Hayes in fee simple.

The deed was signed without the presence of a notary. The grantee, Hayes, assisted in the execution of the deed by presenting and identifying it for his blind mother to sign. He also paid an attorney to draw the deed. Present at the deed's execution in addition to Hayes and Virgie were Hayes' wife and a friend of Hayes who was called to witness the signing.

The record contains evidence tending to show that acquaintances, observing Virgie in 1987, reported that she often appeared confused and that her mental clarity would "come and go." Virgie would from time to time imagine that people stood around her bed. Turner also introduced the nurses' hospital notes of 27 February 1987, the date of the deed's execution, indicating that Virgie was depressed and believed that Turner no longer planned to care for her. Turner's evidence showed that upon discharge Virgie returned to the Benbow Road residence and remained there with Turner until Virgie's death on 13 April 1988. The date after Virgie's discharge from the hospital she was still disoriented, and her doctor recommended that she see a psychiatrist. After Virgie died, Turner remained on the premises. Only after Virgie's death did Hayes assert a right of ownership in the property.

Hayes sought summary ejectment of Turner from the Benbow Road property to which both claimed title. He later amended the complaint seeking damages. Turner defended asserting that Hayes lacked title since the deed by which he purportedly gained title was executed under undue influence or the incapacity of the grantor, Virgie. In a counterclaim Turner alleges she holds a life estate in the property per Virgie's will. Mickens entered the action as intervenor-plaintiff against Hayes alleging that Hayes' deed was void and that she has an undivided fifty percent remainder interest in the property as set forth in Virgie's will. The trial court granted summary judgment for Herndon both on his complaint and on Turner's counterclaim and Mickens' intervening claim.

The issues presented are: I) whether plaintiff's action must be dismissed for lack of subject matter jurisdiction; II) whether the trial court improvidently granted summary judgment against defendant and intervenor-plaintiff on their claims against the plaintiff; and III) whether the issue of the deed's proper form and registration is properly before this court on appeal.

I

While the issue of subject matter jurisdiction has not been raised by any of the parties, "it is [this court's] duty to take proper notice of the defect, and stay, quash or dismiss the suit" when the court is without such jurisdiction. Jackson v. Bobbitt, 253 N.C. 670, 673, 117 S.E.2d 806, 808 (1961). The action which gave rise to this appeal was for summary ejectment under N.C.G.S. § 42-26. A court, in conducting summary ejectment proceedings, derives its jurisdiction solely from this statute, and it may exercise such jurisdiction only where a relationship of landlord and tenant exists and where one of three statutory violations occurs. See Howell v. Branson, 226 N.C. 264, 37 S.E.2d 687 (1946). The statute provides:

Any tenant or lessee of any house or land, and the assigns under the tenant or legal representatives of such tenant or lessee, who holds over and continues in the possession of the demised premises, or any part thereof, without the permission of the landlord, and after demand made for its surrender, may be removed from such premises in the manner hereinafter prescribed in any of the following cases:

(1) When a tenant in possession of real estate holds over after his term has expired.

(2) When the tenant or lessee, or other person under him, has done or omitted any act by which, according to the stipulations of the lease, his estate has ceased.

(3) When any tenant or lessee of lands or tenements, who is in arrears for rent or has agreed to cultivate the demised premises and to pay a part of the crop to be made thereon as rent, or who has given to the lessor a lien on such crop as a security for the rent, deserts the demised premises, and leaves them unoccupied and uncultivated.

N.C.G.S. § 42-26 (1984).

Hayes' complaint in summary ejectment alleges that there was no rent and that no lease existed. The record contains neither allegations nor evidence of a landlord-tenant relationship, and Hayes also failed to allege any of the statutory violations. Hayes' amended complaint also fails to assert the required allegations for summary ejectment or for any other cause of action. We therefore, sua sponte, conclude that the trial court lacked subject matter jurisdiction to hear the summary ejectment action. We therefore vacate the trial court's grant of summary judgment for plaintiff on plaintiff's cause of action and remand for dismissal of that action. See Jones v. Swain, 89 N.C.App. 663, 367 S.E.2d 136 (1988).

II

Lack of jurisdiction over the original claim does not compel dismissal of Turner's counterclaim or Mickens' intervening claim, provided that jurisdiction for those actions lies. See Jennette Fruit & Produce Co., Inc. v. Seafare Corp., 75 N.C.App. 478, 483, 331 S.E.2d 305, 308 (1985) (defendant's cross-claim not dismissed upon dismissal of plaintiff's claim); see also Brooks v. Gooden, 69 N.C.App. 701, 707, 318 S.E.2d 348, 352 (1984) ("counterclaim is in the nature of an independent proceeding and is not automatically determined by a ruling in the principle claim ...").

The counterclaim and intervening claims sought to invalidate Hayes' deed to the Benbow Road property because of his alleged undue influence on or the incapacity of the grantor. In addition, they sought a judgment or declaration of their rights to the Benbow Road property under Virgie's will. We first determine that Turner and Mickens were proper parties to contest the title to the real estate in question. The court had subject matter jurisdiction over these claims.

As a general rule, heirs or devisees are the proper parties to sue to recover real estate belonging to decedent, or to protect their rights in such property, and the executor or administrator is not a proper or necessary party to such a suit....

34 C.J.S. Executors and Administrators § 741(a), at 768 (1942) (footnotes omitted).

Conveyances made under undue influence. A bill to set aside a deed on the ground of undue influence cannot be filed by the deceased grantor's personal representative, but can be maintained only by his heirs; and in a suit of such nature instituted by the heirs the executor or administrator is neither a necessary nor a proper party.

Id. at 775 (footnotes omitted); see Kearns v. Primm, 263 N.C. 423, 427-28, 139 S.E.2d 697, 700 (1965) (administrator not a necessary or proper party in heir's action...