Smith v. Gudger.

45 S.E. 955 | N.C. | 1903

The facts set out in the complaint and admitted by the demurrer bring this case clearly within the principle announced by this Court in Springs v. Scott, 132 N.C. 548, and Hodges v. Lipscombe,ante, 199. The allegations in regard to the condition of the property, its nonproductive character and the heavy burdens of taxation, illustrate very strongly the necessity for the recent legislation and the rulings of this Court in regard thereto. We do not deem it necessary to discuss further the authorities or principles upon which the cases cited as controlling this record are founded. We think, however, that the plaintiff erroneously brought this proceeding before the clerk. It is not a (628) special proceeding for partition, but an equitable proceeding for the sale of property and reinvestment of the proceeds formerly cognizable in a court of equity, as set out in Watson v. Watson,56 N.C. 400. We do not think that this equitable power is conferred upon the clerk. The cause, however, being now in the Superior Court by appeal, as in Springs v. Scott, we can see no reason why that court could not retain control and make all of the necessary orders in the premises. To the suggestion in the demurrer that all the persons who might, in any contingency, have an interest therein are not made parties, it is sufficient to say that the act of 1903 was passed expressly to meet the difficulty therein suggested. Such parties, if any, who shall hereafter come into being who may have any interest in the property are represented by all parties now in esse. The question is fully discussed in the opinion inSprings v. Scott, supra. We desire to emphasize what we then said with regard to the duty of the court to be diligent to ascertain the facts in each case and to proceed with caution in making orders therein. By so doing, as we there said, "the purpose of the Legislature will be accomplished without doing violence to, but rather in accordance with, the principles of our jurisprudence, and the preservation and protection of the rights of the parties." We would suggest that before further proceedings are had in this cause testimony be taken and the facts affirmatively found in respect to the allegations in the complaint. The cause should be docketed in the Superior Court and orders and decrees made in accordance with the practice of the court at regular term thereof and signed by the judge. Thus modified, the judgment of the court below is

Affirmed.

Cited: McAfee v. Green, 143 N.C. 418; Smith v. Miller, 151 N.C. 627;Ryder v. Oates, 173 N.C. 573; Smith v. Witter, 174 N.C. 620.

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