97 S.E. 23 | N.C. | 1918
This is an appeal from an order made in two actions and in a special proceeding pending in the Superior Court of Wake County. *209
The first action was commenced on 16 January, 1914, by Elwood H. Lee, as heir of James Lee, for the purpose of setting aside certain deeds executed by said James Lee to the defendants on the ground that James Lee did not have sufficient mind to execute a deed, and that the deeds were procured by fraud and undue influence.
The second action was commenced on 23 April, 1915, by the said Elwood Lee against the defendants Mason and wife for the purpose of recovering possession of the land described in the complaint in the first action, the said defendants having entered into possession of said land since the institution of the first action.
The first action was tried at January Term, 1917, of the Superior Court, and a jury having found all the issues in favor of the plaintiff a judgment was entered thereon declaring the deeds void and setting them aside because they were procured by fraud and undue influence.
On 5 December, 1917, the widow of James Lee filed her petition against the said Elwood H. Lee, asking that dower be allotted to her in said land, and the said defendant filed an answer to said petition setting up as a defense that the said widow had committed adultery in the lifetime of the said James Lee and was not living with him at his death.
At the April Term, 1918, of said court an order was entered over the objection of the said Elwood Lee entitled as of each of the three proceedings hereinbefore referred to, and referring all matters in controversy in all of said proceedings to one referee to be heard at the same time. The said Elwood Lee excepted to said order and appealed.
One who is not in possession of land may bring an action to set aside a deed for fraud and undue influence and in the same action recover possession of the land and the rents and profits, as was done in Reed v.Exum,
"The power to issue the writ results from the principle that the jurisdiction of the court to enforce its decree is coextensive with its jurisdiction to determine the rights of the parties, and the court will carry its decrees into full execution, where it can do so justly, without relying on the cooperation of any other tribunal. This is a rule of such practical utility in promoting the ends of justice, preventing unnecessary suits, saving expense, and avoiding delay, as commends itself strongly to the approbation of the courts of equity." 2 R. C. L., 728. *210
"It has been said that the most familiar instance of its use is where land has been sold under a decree foreclosing a mortgage. Harding v.Harker,
The same principle is declared in Clarke v. Aldridge,
It follows, therefore, the second action was unnecessary as the plaintiff could have been put in possession in the first, and, under our system, which administers law and equity in one action, he could also have had the amount of the rents and profits ascertained; but as no objection has been made on this ground, and the right to possession has been denied, these two actions ought to be consolidated and heard together, to the end that a writ issue putting the plaintiff in possession of the land and turning the defendants out, and that the rents and profits be determined, which are the only questions unsettled in those actions.
In the proceeding for the allotment of dower the defendant sets up as a defense that the petitioner committed adultery in the lifetime of her husband and was not living with him at his death, which, under Revisal, sec. 3083, may be pleaded in bar of any proceeding for dower.
It appears, therefore, that whether the order is treated as one of consolidation and a reference of the consolidated action, or as a reference of each action and proceeding under one form, in either event a compulsory reference has been ordered, when the only question open in the *211 two actions is the amount of the rents, and when in the dower proceeding there is a plea in bar undetermined.
Did the court have the power to order a reference under these conditions? We think not. The right to refer by consent is without limit, subject to the exceptions mentioned, which are not material here, the statute providing that "All, or any of the issues in the action, whether of fact or of law, may be referred, upon the written consent of the parties, except in actions to annul a marriage or for divorce and separation." Revisal, sec. 518. But the court cannot order a compulsory reference except in the cases enumerated in Revisal, sec. 519, nor can such an order be made when there is a plea in bar undetermined.
This distinction exists because in the compulsory reference the parties reserve their right to a jury trial upon the coming in of the report of the referee, and as the parties will be subjected to the expense and delay of two trials, it ought not to be resorted to for the trial of the issues raised by the pleadings, except when a long account, complicated boundary, or some other intricate questions arise which cannot be intelligently investigated before a jury (Hall v. Craige,
The order was improvidently entered and will be set aside.
Reversed.