Waters v. Boyd

• Decision Date: 18 February 1920
• Docket Number: 11.
• Citation: 102 S.E. 196,179 N.C. 180
• Parties: WATERS v. BOYD ET AL.
• Court: North Carolina Supreme Court

102 S.E. 196

179 N.C. 180

WATERS v. BOYD ET AL.

No. 11.

Supreme Court of North Carolina

February 18, 1920

Appeal from Superior Court, Beaufort County; Bond, Judge.

Action without controversy between Nancy Elizabeth Waters and Henry C. Boyd and another. From the judgment rendered, plaintiff appeals. Action dismissed.

In submission of action without controversy by plaintiff claiming fee-simple title under deed, and defendants, her children, claiming that they are tenants in common thereunder, whether the language in the warranty can be construed as a conveyance of the remainder to defendants cannot be adjudicated, unless the deed, as well as the heirs of the grantor in the deed, are before the court.

In submission of action without controversy by plaintiff claiming fee-simple title under deed, and defendants, her children, claiming that they are tenants in common, the court could not have directed additional parties or statement of facts to be made in invitum to cure defect.

J. D Paul, of Washington, N. C., for appellant.

CLARK C.J.

This is an action submitted without controversy under Rev. § 803. This statute must be strictly construed. Arnold v. Porter, 119 N.C. 123, 25 S.E. 785; Grandy v. Gulley, 120 N.C. 177, 26 S.E. 779. It requires that the affidavit must set out that--

"The controversy is real, and the proceedings in good faith to determine the rights of the parties."

The affidavit in this case merely sets out that--

"The controversy between them is genuine, and is submitted to the court to determine the rights of the parties."

This is not a compliance with the statute. In like manner the absence of the words "in good faith," on an appeal in forma pauperis in a criminal case, is fatal (Rev. § 3278; State v. Bramble, 121 N.C. 603, 28 S.E. 269 [see Anno. Ed.]), and the failure to follow the statute in civil cases is also ground for dismissal (Honeycutt v. Watkins, 151 N.C. 653, 65 S.E. 762).

Furthermore, the facts agreed show no cause of action stated against the defendants, and on that ground also it must be dismissed. The facts agreed set out the following:

"In the caption and granting clause in said deed, where any reference is made to the grantee, the name Nancy Elizabeth Waters is given and no other, except in the last clause of the deed these words are used: 'We warrant this title to Nancy Elizabeth Waters, to her and her children and executors and administrators and assigns forever.' The plaintiff paid the consideration recited in the deed, and contends that she owns the land in fee simple, and that the deed on its face shows that it was intended that she should take a fee-simple title. The defendants, who were her only children at the time the deed was given, contend that they are tenants in common with the plaintiffs, and rely upon the last clause in the deed above set out."

It is further agreed that--

"The plaintiff made a sale of the land described above, but because of the contention of the...