Morris v. Wilkins
| Citation | 241 N.C. 507,85 S.E.2d 892 |
| Decision Date | 02 March 1955 |
| Docket Number | No. 102,102 |
| Parties | Effie Mae MORRIS v. Huler WILKINS. |
| Court | United States State Supreme Court of North Carolina |
Hobart Brantley for plaintiff, appellee.
Taylor & Mitchell for defendant, appellant.
Defendant's assignments of error present two questions: first, if the facts are as set forth in said affidavit, was the defendant entitled to file answer without first filing a defense bond in conformity with G.S. § 1-111; and second, if so, did the court err in striking the answer and granting plaintiff's motion for judgment by default final without finding the essential facts relating to the matters set forth in said affidavit, in the absence of specific request that the court make such findings? Upon the record presented, these questions must be answered in the affirmative.
Ordinarily, a defendant, who is brought into court by the action of the plaintiff, is not required to give bond or other security as a condition precedent to his right to defend the action. McIntosh, N. C. P. & P., p. 334. The rule is otherwise in actions for the recovery or possession of real property. G.S. § 1-111. In such case, (unless excused under G.S. § 1-112), if the defendant fails to file the required bond the plaintiff is entitled to judgment by default final as to title and possession. Jones v. Best, 121 N.C. 154, 28 S.E. 187; Patrick v. Dunn, 162 N.C. 19, 77 S.E. 995. By statute, the clerk is authorized to enter such judgment. G.S. §§ 1-209, 1-211(4).
This is an action in ejectment. It is based upon plaintiff's allegations that she is the owner of the lands; that she is entitled to the possession thereof; and that defendant is in possession and wrongfully refuses to surrender possession to plaintiff. In such action, nothing else appearing, the defense bond prescribed by G.S. § 1-111 is required.
Cases in which a defendant seeks to set aside a judgment by default final, rendered for want of an answer or defense bond or both, on the ground of excusable neglect, have no application here. Vick v. Baker, 122 N.C. 98, 29 S.E. 64; Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269; Pierce v. Eller, 167 N.C. 672, 83 S.E. 758; Battle v. Mercer, 187 N.C. 437, 122 S.E. 4. Nor do cases in which the defendant, after answer, invokes the discretion of the court for leave to file defense bond after statutory time therefor has expired. Cooper v. Warlick, 109 N.C. 672, 14 S.E. 106; Carraway v. Stancill, 137 N.C. 472, 49 S.E. 957; Shepherd v. Shepherd, 179 N.C. 121, 101 S.E. 489.
The defendant does not allege excusable neglect or seek permission to file bond. She relies solely upon her contention that, by reason of plaintiff's conduct subsequent to the commencement of the action, she was entitled as a matter of law to file answer without filing a defense bond in conformity with G.S. § 1-111.
The bond required by G.S. § 1-111 does not apply to a defendant who is not in possession of the land in controversy. Carraway v. Stancill, supra. Hence, the statute does not apply to an action by a plaintiff in possession to remove a cloud from his title. Timber Co. v. Butler, 134 N.C. 50, 45 S.E. 956; Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468. Nor does it apply to an action to establish a parol trust and to have defendant render an accounting as mortgagee in possession. Hodges v. Hodges, 227 N.C. 334, 42 S.E.2d 82; Bryant v. Strickland, 232 N.C. 389, 61 S.E.2d 89. Nor does it apply to a special proceeding under G.S. § 38-1 et seq. to establish the location of a boundary line. Roberts v. Sawyer, supra. Our decisions point towards a restriction of its application to actions in ejectment, the defendant being in possession when the action is commenced. As stated by Seawell, J., in Bryant v. Strickland, supra:
The fact that the title to real property is in issue, standing alone, is not determinative. Rather, the statute is to protect the plaintiff from damages he may suffer by reason of defendant's wrongful possession between the commencement of the action and the entry of final judgment. As Clark, J., (later C. J.), puts it: 'For what other purpose than to secure such mesne profits is the defense bond required, under Code, § 237?' Credle v. Ayers, 126 N.C. 11, 35 S.E. 128, 48 L.R.A. 751. The plain purpose of G.S. § 1-111 is to assure the plaintiff that he will suffer no damages during such period as he may be wrongfully deprived of possession.
At the hearing in the court below, according to the uncontroverted facts set forth in said affidavit, plaintiff, after commencement of the action and before the time for filing answer had expired, proceeded to take possession of practically all of the 87 1/2 acre tract. Having taken possession by such unauthorized entry, is the plaintiff entitled to the summary relief designed to protect those who rely upon their legal remedies?
The defendant, as well as the plaintiff, alleges that she is the owner and entitled to the possession of all of the lands described in the complaint. If the facts set forth in said affidavit are true, plaintiff on account of such unauthorized entry, has become in reality a defendant in possession in respect of the entire 87 1/2 acre tract except a dwelling house in possession of the defendant. Should the plaintiff in respect of such lands in her possession be required or permitted to give bond as prescribed by G.S. § 1-111? Obviously not, for the statute does not contemplate that the plaintiff be permitted to give bond to protect a possession acquired by plaintiff by unauthorized entry after commencement of the action. Moreover, these facts are beyond the scope of the pleadings.
In such case, the rule we adopt is this: In an action for the recovery or possession of real property a plaintiff is not entitled to the summary relief of judgment by default final ordinarily available upon defendant's failure to give the defense bond prescribed by G.S. § 1-111 when he takes possession of the lands in controversy or any substantial portion thereof by unauthorized entry after commencement of the action unless and until he first restores the status quo in respect of possession existing as of the date of the commencement of the action.
No direct authority on the exact question here presented has come to our attention. However, this Court considered a somewhat similar situation in Rollins v. Henry, 77 N.C. 467.
Plaintiffs' action was against Ham Rollins, a tenant. One R. M. Henry, a third party, asked leave to intervene and defend the action. By affidavit, he alleged that he owned the lands in controversy and that Ham Rollins, original defendant, was in possession as his tenant. Plaintiffs filed counter-affidavits alleging that Ham Rollins was their tenant. Upon its findings of fact, the court adjudged that Ham Rollins was the tenant of plaintiffs, denied the motion of Henry to be allowed to defend as landlord and awarded a writ of possession against Ham Rollins, who had filed no defense bond or answer. Henry appealed. This Court held that upon filing the affidavit, R. M. Henry should have been permitted to defend either with or without the tenant, upon complying with the other statutory requirements. It was further held that the tenants claiming under Henry had been illegally evicted and were entitled to restitution of possession pending trial of the action. For the errors indicated, the cause was remanded. See companion cases of Rollins v. Rollins, 76 N.C. 264, Rollins v. Bishop, 76 N.C. 268, and Rollins v. Henry, 76 N.C. 269, heard in this Court at January Term, 1877.
Thereupon, Henry filed a defense bond and answer. Meanwhile, plaintiffs had taken possession under the erroneous judgment. In this...
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