Smith v. Dicks
Decision Date | 12 June 1929 |
Docket Number | 258. |
Citation | 148 S.E. 464,197 N.C. 355 |
Parties | SMITH v. DICKS. |
Court | North Carolina Supreme Court |
148 S.E. 464
197 N.C. 355
SMITH v. DICKS.
No. 258.
Supreme Court of North Carolina
June 12, 1929
Appeal from Superior Court, Wake County; Romulus A. Nunn, Judge.
Submission of controversy without action between Ed Chambers Smith plaintiff, and Arthur E. Dicks, defendant. From the judgment defendant appeals. Affirmed.
Submission of controversy without action. Agreed case:
"1. The above named Ed Chambers Smith, is now and was at the times hereinafter mentioned, a citizen and resident of the County of Wake and State of North Carolina.
"2. That the above named, Arthur E. Dicks, is a citizen and resident of the County of Wake, and State of North Carolina.
"3. That on the 18th day of August, 1885, the Capital Club of the City of Raleigh was organized, and incorporated for literary and social purposes, and obtained a charter under the laws of the State of North Carolina, and in pursuance of said purposes maintained a club for its members, governed by a constitution and by-laws adopted by said Capital Club of the City of Raleigh, and that a copy of said charter, constitution and by-laws is hereto attached marked Exhibits A, B and C, respectively. (For a decision of the case it is unnecessary to include the exhibits in this opinion.)
"4. That the said Capital Club of the City of Raleigh was chartered for a period of thirty years from the 18th day of August, 1885.
"5. That on the -- day of June, 1902, the Capital Club of the City of Raleigh acquired by purchase a certain lot of land in the City of Raleigh, N. C., at the Northeast intersection of Martin and Salisbury Streets, and erected thereon a Club House, said tract or lot of land being more particularly described as follows: 'Situate in the City of Raleigh, N. C., and beginning at the Southwest corner of Lot No. 115, it being the Northeast corner of intersection of Salisbury and Martin Streets; running thence North along the east line of Salisbury Street about 70 feet to the Southwest corner of the lot formerly owned by B. M. Moore; running thence East parallel with Martin Street about 70 feet to the lot formerly owned by the Coley heirs, and now owned by Mrs. F. P. Tucker, running thence South parallel with Salisbury Street 70 feet to the line of Martin Street; thence West along the North line of Martin Street about 70 feet, to the beginning, together with all buildings and appurtenances thereto belonging.'
"6. That the charter of the Capital Club of the City of Raleigh expired by limitation on the 18th day of August, 1915, at which time there were 168 resident members of said Club and about 40 nonresident members; that the fact of the expiration of the charter was not discovered by the Club until sometime in 1922; that in the meantime those who were members of the corporation at the time of the expiration of the charter, being ignorant of the fact that the charter had expired, continued to operate a club in said building, until some time in 1922, when it was discovered that the charter had expired and thereupon, on the 7th day of April, 1922, a charter was obtained from the office of the Secretary of State, incorporating The Capital Club of the City of Raleigh, Inc., the then resident members of the Club being the incorporators. That during the time between the expiration of the charter of the old corporation and the incorporation of the Capital Club of Raleigh, Inc., the old members who operated the club, associated with themselves certain new members by election and between the date of August 18, 1915, and August 18, 1918, approximately 30 additional members were so admitted, making the membership 198 resident members on August 18, 1918. That no conveyance of any interest in the property was made by any old member to any new member.
"7. That no effort was made to wind up the affairs of the corporation within three years from the date of the expiration of the charter, none of its officers and members being aware of the fact that the charter had expired. Those who were members of the corporation continued the operation of the club, and associated new members with them by election just as if the charter had not expired.
"8. That there were no debts of the corporation at the time of the expiration of its charter on August 18, 1915, or at the end of three years from that date, except current operating expenses and a mortgage indebtedness which is embraced in a deed of trust made on said property by the Capital Club of the City of Raleigh, N.C. That all current operating expenses have been paid.
"9. That Sections 6 and 7 of the Charter of the Capital Club of the City of Raleigh (the old corporation), which charter was in force up until its expiration in August, 1915, are in words and figures as follows, to-wit:
"'(6) The number, qualification, privileges, and method of election of members shall be fixed by the by-laws of the corporation; Provided, that no person shall ever be admitted as a member of the corporation except upon the payment of twenty-five dollars ($25.00) as an entrance fee; which entrance fee may be increased or decreased as to persons admitted to membership after the date of incorporation, to such sum as the by-laws may prescribe. Any person may voluntarily cease to be a member of the corporation whenever he sees fit to withdraw therefrom; and any member may be expelled, and may forfeit his membership, under such rules and regulations as may be fixed by the by-laws.
"'(7) No member shall have the right to sell or transfer his membership or his rights or privileges as such, or to substitute another person as a member in his place; and any person ceasing to be a member, whether voluntarily or by expulsion, or by death, shall forfeit all rights and privileges of membership and all rights and claim in and to the property of the corporation, and all his interest in such property shall vest in the corporation absolutely.'
"10. That under and by virtue of the provisions of Sections 6 and 7 of the charter set forth in Section 12 thereof, Article 4 of the Constitution in Sections 1, 2 and 3 regulates the status of resident and non-resident members, said Sections 1, 2 and 3 being in words and figures as follows, to-wit:
"'Sec. 1. Members shall be classed as Resident, Non-Resident and Honorary.
"'Sec. 2. Resident members are such as reside or have a place of business in Raleigh Township. They are subject to dues and assessments and have a right to vote and hold office.
"'Sec. 3. Non-resident members are such as reside out of, and have no place of business in Raleigh Township. They are not subject to assessments and are not entitled to vote or hold office.'
"11. That said sections were in force at the time of the expiration of the charter of the Capital Club of the City of Raleigh.
"Sec. 10A.--Section 2 of Article VI provides: 'Persons elected non-resident members shall pay annually ten dollars in advance, and shall be exempt from all other dues.' "12. That plaintiff was a resident member of the Capital Club of the City of Raleigh in good standing on the 18th day of August, 1915, and by virtue thereof claims that he is the owner of a 1/168 undivided interest in fee in the property described in section five hereof.
"13. That plaintiff and defendant have entered into a written contract whereby plaintiff has contracted to sell and defendant has contracted to buy at the price of $250.00 the undivided interest of plaintiff in the lands described in said paragraph 5, provided that interest amounts to a 1/168 undivided interest in fee, as claimed by plaintiff, but defendant now refuses to comply with his contract on the grounds that plaintiff is not the owner of said interest claimed and therefore cannot comply with his contract to convey.
"Plaintiff contends: That upon the expiration of the charter on August 18, 1915, all resident members in good standing immediately became tenants in common of the Club real estate and other property, and that he as such member became the owner in fee simple, subject to the then outstanding mortgage of a 1/168 undivided interest therein.
"Defendant contends:
"(1) That upon the expiration of the charter of the Capital Club of the City of Raleigh upon the 18th day of August, 1915, the entire property of said Club escheated to the University of North Carolina.
"(2) That the persons who became members of the Club within three years after the expiration of the Charter on August 18, 1915, have the same rights in the Club property as those who were members at the time of the expiration of the charter.
"(3) That the non-resident members who were members of the Club in good standing at the date of the expiration of the Charter and those who became members of the Club within three years after the expiration of the Charter are entitled to the same rights in the Club property as the resident members.
"(4) That plaintiff is not entitled to a 1/168 undivided interest in fee in said property, subject to outstanding mortgage indebtedness."
The court rendered the following judgment: "This cause coming on to be heard and being heard at Chambers, before His Honor R. A. Nunn, Judge, of the Superior Court, upon the Agreed Case herein and after hearing the argument of Counsel for the plaintiff and defendant, and after consideration of the facts set forth in the Agreed Case and the Exhibits attached thereto: It is Ordered, Adjudged and Decreed:
"1. That upon the expiration of the charter of the Capital Club of the City of Raleigh on the 18th day of August, 1915, the resident members in good standing at that time became tenants in common of the property of said corporation subject to whatever debts it might owe at the date of the expiration of the charter.
"2. That those persons who became members of the Club within...
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University of North Carolina v. City of High Point
- United States
- North Carolina Supreme Court
- November 23, 1932
... ... condition subsequent, such as to work a reversion of the ... title, would seem to follow from what was said in Tucker ... v. Smith, 199 N.C. 502, 154 S.E. 826; Hall v ... Quinn, 190 N.C. 326, 130 S.E. 18; Blue v. City of ... Wilmington, 186 N.C. 321, 119 S.E. 741; Brittain v ... 53; Town of Montpelier v. Town of East ... Montpelier, 29 Vt. 12, 67 Am. Dec. 748 ... The ... decisions in Smith v. Dicks, 197 N.C. 355, 148 S.E ... 464, and Broadfoot v. City of Fayetteville, 124 N.C ... 478, 32 S.E. 804, 70 Am. St. Rep. 610, cited and relied upon ... ...