27 S.E. 45 | N.C. | 1897
This is an action of trespass involving the title to the land in controversy, which depends upon the location of two grants. The real point in dispute seems to be whether the line constituting the northern boundary of the Smith grant and the southern (120) boundary of the Brinkley grant, runs from "F," an admitted corner, to "G" or to "H," as stated in the case on appeal. The merits of this case were ably and elaborately argued before this Court, and we regret our inability to determine the matter, but we cannot undertake to *82 review a judgment based upon issues which utterly fail to present the contentions of the parties. The following are the only issues: Where is Beegum Island, at "H" or "I"? Have the defendants and those under whom they claim been in adverse possession of the land in dispute for a period of twenty years at any time prior to the beginning of this action? What damage, if any, is the plaintiff entitled to recover?
The first issue is the only one looking to the location of the land, and it fails to establish a single matter of issue raised by the pleadings. Beegum Island itself, which is said to contain two or three acres, is not called for by either grant. The Brinkley grant begins at "a pine standing in the branch below Beegum Island," running thence north, and when it comes around to the land now in dispute, calls for Smith's line. Smith's grant does not mention Beegum Island in any way whatever, The perplexity of the situation is by no means lessened by the older grant calling for the line and corners of the junior grant.
It is true, the issues were submitted by counsel, but if there was any agreement between the parties that the location of Beegum Island should determine any point in controversy it does not appear in the record.
The submission of issues by consent does not amount to a consent judgment, especially where the judgment which is excepted to is entirely unsupported by the issues. 1 Freeman Judgments, sec. 2; 1 Black Judgments, sec. 106.
The location of the line between Brinkley and Smith is still unsettled, at least as far as appears to us. That should have been the issue. (121) "Issues arise upon the pleadings when a material fact or conclusion of law is maintained by the one party and controverted by the other." Code, sec. 391; Heilig v. Stokes,
In Bowen v. Whitaker,
In Arnold v. Estis,
In Fisher v. Mining Co.,
In Vaughan v. Parker,
Many decisions might be cited as to the form of the issues, but that point is not now directly before us. We are not inadvertent to the long line of decisions laying down the rule that the refusal of the Court to submit an issue tendered by either party can not be reviewed by this Court unless exception is taken in apt time; nor do we wish to be understood as reversing or modifying it. That rule, when reasonably construed, does not conflict with the one herein laid down. What we now say is, that sec. 395 of The Code is mandatory, binding equally upon the Court and upon counsel; that it is the duty of the Judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that in the absence of such issues, or admissions of record equivalent thereto, sufficient to reasonably justify, directly or by (123) clear implication, the judgment rendered therein, this Court will remand the case for a new trial. Under this rule there was error in the rendition of the judgment and a new trial is therefore ordered.
New trial. *84
Cited: Cecil v. Henderson,