Edmondson v. Henderson
99 S.E.2d 869
N.C.
1957
Check Treatment
JOHNSON, J.

We are confronted at the outset with the question whether T. 0. Manning is a necessary party to the action.

In Gaither Corp. v. Skinner, 238 N.C. 254, 256, 77 S.E. 2d 659, the Court said, quoting from McIntosh, North Carolina Practice and Procedure, Sec. 209, p. 184: “ ‘Necessary or indispensable parties are those whose interests are such that no decree can be rendered which will not affect them, and therefore the court cannot proceed until they are brought in. Proper parties are those whose interests may be affected by a decree, but the court can proceed to adjudicate the rights of others without necessarily affecting them, and whether they shall be brought in or not is within the discretion of the Court.’ ”

In Assurance Society v. Basnight, 234 N.C. 347, 352, 67 S.E. 2d 390, it is said: “The term ‘necessary parties’ embraces all persons who have or claim material interests in the subject matter of a controversy, which interests will be directly affected by an adjudication of the controversy. ... A sound criterion for deciding whether particular persons must be joined in litigation between others appears in this definition: Necessary parties are those persons who have rights which must be ascertained and settled before the rights of the parties to the suit can be determined.”

In Garrett v. Rose, 236 N.C. 299, 307, 72 S.E. 2d 843, it is said: “A person is a necessary party to an action when he is so vitally interested in the controversy involved in the action that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence as a party.”

When the facts here are tested by the foregoing principles, it is manifest that T. 0. Manning is a necessary party to the action. He purchased Benjamin Harrell’s share of the land and now holds a deed purporting to convey a fee simple estate. His interest is such that no decree can be entered construing the will and settling the rights of the parties without affecting his interest and claim in the land.

We have given consideration to the fact that the case was brought under the Declaratory Judgment Act. G.S. 1-256 to 1-267. The Act has this provision respecting the joinder of parties (G.S. 1-260): “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings.”

Does this section liberalize the practice in cases brought under the Declaratory Judgment Act? In short, does it mean that the provision requiring that “all persons shall be made parties who have or claim an interest which would be affected by the declaration” is not mandatory in view of the further provision that “no declaration shall prejudice the rights of persons not parties to the proceedings”?

Regardless of how this may be, and conceding without deciding that the practice as to parties may be somewhat liberalized under the Declaratory Judgment Act, nevertheless where it appears, as here, in a case involving the construction of a will that the absence of a necessary party prevents the entry of a judgment finally settling and determining the question of interpretation, we think the court should refuse to deal with the merits of the case until the absent person is brought in as a party to the action. See 16 Am. Jur., Declaratory Judgments, Sec. 55; Annotation: 87 A.L.R. 1205, 1244. For oversight in this respect the case will be remanded to the trial court with direction that T. O. Manning be brought in as a party. This accords with the procedure followed in our recent decision in Peel v. Moore, 244 N.C. 512, 94 S.E. 2d 491, where, as here, the defect of parties was not formally raised in the court below. See also Wagoner v. Saintsing, 184 N.C. 362, 114 S.E. 313; Brinson v. McCotter, 181 N.C. 482, 106 S.E. 215; Waters v. Boyd, 179 N.C. 180, 102 S.E. 196; Thomas v. Reavis, 196 N.C. 254, 145 S.E. 226. Cf. Hine v. Blumenthal, 239 N.C. 537, 80 S.E. 2d 458; 39 Am. Jur., Parties, Sec. 111.

The defendant appellant claims in his brief that the five children of Hattie Harrell Butler and the two adopted children of Tom Edmondson have or may claim interests which will be affected by final decree construing the Henry Harrell will. We express no opinion as to these questions, raised for the first time in this Court. It suffices for us to remand the case for fatal defect resulting from the failure to join T. 0. Manning as a party. When the case goes back to the trial court these additional questions respecting joinder of parties, and any other questions which any of the parties may deem relevant for consideration by the court, may be raised and determined.

The case is remanded for such further proceedings as the law directs and the rights of the parties require.

Remanded.