114 S.E. 313 | N.C. | 1922
This is a controversy without action, submitted to the Superior Court upon facts to which the parties have agreed. It comes here for the purpose of determining whether the plaintiff can make a good and indefeasible title to the defendant for the land described in the submission, and this involves a construction of the will of Jacob Wagoner, deceased. But the living daughters of Jacob Wagoner, and the heirs of such as have died, are necessary, or, at least, proper parties to the controversy in order to a complete determination of the question raised.
The matter as now presented is not substantially unlike that upon which the case of Brinson v. McCotter,
We do not pursue that course entirely nor do we compel the persons we have designated as proper or necessary parties to be brought in against their will (in invitum), but merely afford them the opportunity of coming in by consent and joining in the submission of the controversy upon the facts as they are now stated, or if the parties and *363 interested persons are so advised and agree, upon a new state of facts, or such facts additional to those already agreed upon, as may meet with the consent of the parties, the case may be submitted to the judge again, if found to be necessary, and the parties so agree, for his decision, or such other and further proceedings may be had as may be in accordance with the law and the course and practice of the court.
Upon a somewhat similar question, the Court said, in Waters v. Boyd,
The case will be remanded, but if it is so agreed, and is found to be feasible, the new parties may be added and the necessary amendments to the case may be made in this Court, and for this purpose the case may be retained here for a reasonable time, or remanded, as the parties may elect.
Remanded.