Simmons v. U.S. Through Farmers Home Administration, U.S. Dept. of Agriculture, 8127SC39

• Decision Date: 21 July 1981
• Docket Number: No. 8127SC39,8127SC39
• Citation: 280 S.E.2d 463,53 N.C.App. 216
• Parties: Fred M. SIMMONS and wife, Eunice S. Simmons v. UNITED STATES of America, acting Through the FARMERS HOME ADMINISTRATION, U. S.DEPARTMENT OF AGRICULTURE, James O. Buchanan, Trustee.
• Court: North Carolina Court of Appeals

Page 463

280 S.E.2d 463

53 N.C.App. 216

Fred M. SIMMONS and wife, Eunice S. Simmons v. UNITED STATES of America, acting Through the FARMERS HOME

ADMINISTRATION, U. S.DEPARTMENT OF AGRICULTURE,

James O. Buchanan, Trustee.

No. 8127SC39.

Court of Appeals of North Carolina.

July 21, 1981.

Hamrick, Mauney, Flowers, Martin & Deaton by W. Robinson Deaton, Jr., Shelby, for plaintiffs-appellants.

U. S. Atty. Harold M. Edwards by Asst. U. S. Atty. Jerry W. Miller, Asheville, and Senior Atty. Lawrence B. Lee, U. S. Dept. of Agriculture, Atlanta, Ga., for defendant-appellee United States of America.

HEDRICK, Judge.

Plaintiffs assign error to the court's conclusions that the action was one to reform an instrument on the basis of a unilateral mistake based upon misrepresentation and that it was without jurisdiction to hear this action, and to the order entered thereon. Plaintiffs argue that their action was in the nature of an action to quiet title such that the court had jurisdiction over defendants pursuant to 28 U.S.C. § 2410(a). We do not agree.

28 U.S.C. § 2410(a) provides:

Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter

(1) to quiet title to,

(2) to foreclose a mortgage or other lien upon,

(3) to partition,

(4) to condemn, or

(5) of interpleader or in the nature of interpleader with respect to real or personal property on which the United States has or claims a mortgage or other lien.

The United States, like all sovereigns, cannot be sued except so far as it has consented to be sued. Finch v. Small Business Administration, 252 N.C. 50, 112 S.E.2d 737 (1960). See also Hudson County Board of Chosen Freeholders v. Morales, 581 F.2d 379 (3d Cir. 1978). 28 U.S.C. § 2410 operates as a waiver of sovereign immunity and consequently, within its ambit, allows suits to be maintained against the United States. Hudson County Board of Chosen Freeholders v. Morales, supra; Broadwell v. United States, 234 F.Supp. 17 (E.D.N.C.1964), affirmed, 343 F.2d 470 (4th Cir.), cert. denied, 382 U.S. 825, 86 S.Ct. 57, 15 L.Ed.2d 70 (1965).

Plaintiffs concede, and we agree, that the only applicable subsection of 28 U.S.C. § 2410 in the present case is subsection (1). In order for the superior court in this case to entertain plaintiffs' action, the following requirements must be met: plaintiffs' action must be a civil action to quiet title to certain real or personal property, the court must have jurisdiction of the subject matter, and the Government must have or claim a mortgage or other lien on the affected property. Obviously the Government has a "mortgage or other lien" on the property involved in this action. Also, defendants' contentions to the contrary, it would appear that the court would have subject matter jurisdiction of this action if it were in fact a quiet title action. See G.S. §§ 41-10 and 7A-240, -243. Furthermore, the subject matter jurisdiction requirement has not been much of a barrier to maintaining actions in state courts. See Smith v. United States, 254 F.2d 865 (6th Cir. 1958). We note in passing that defendants' contention that the Government can only be named as a third party under 28 U.S.C. § 2410 is not supported by the cases. See Annot., 5 L.Ed.2d 867 (1961) at § 8. Also, defendants' contentions with respect to the necessity for "independent grounds for jurisdiction" in addition to Section 2410 are inapposite, since the cases cited in support thereof are addressed to actions arising under Section 2410 in federal courts, see Wells v. Long, 162 F.2d 842 (9th Cir. 1947).

We cannot say, however, that plaintiffs' action is in the nature of an action to quiet title. Plaintiffs contend that their action is one to quiet title since they are seeking to remove a "cloud on the title" of plaintiffs to the second tract. Quiet title actions have been interpreted to include actions to remove a cloud on the title of a plaintiff under both federal law, United States v. Coson, 286 F.2d 453 (9th Cir. 1961) and under G.S. § 41-10, York v. Newman, 2 N.C.App. 484, 163 S.E.2d 282 (1968). In York v. Newman, supra, this Court stated that a cloud on title is itself a title or encumbrance, apparently valid but in fact invalid. 65 Am.Jur.2d Quieting Title § 9 defines a cloud on title as an outstanding instrument, record, claim, or encumbrance which is actually invalid or inoperative, but which may nevertheless impair the title to the property. In our view, no such "cloud on title" appears in the present case. Plaintiffs merely seek to release Tract II from the deed of trust; they do not contend that the deed of trust is in fact invalid. We agree...