Story v. Walcott , 240 N.C. 622 ( 1954 )

83 S.E.2d 498 (1954) 240 N.C. 622

C. O. STORY
v.
Eugenia B. WALCOTT.

No. 163.

Supreme Court of North Carolina.

September 22, 1954.

McCown, Lavender & McFarland, Tryon, for plaintiff-appellant.

Robert L. Whitmire, Jr., Hendersonville, for defendant-appellee.

BOBBITT, Justice.

A grantee, by acceptance of a deed, "becomes bound by the stipulations, recitals, conditions, and limitations therein contained, even though he has not signed the deed". 26 C.J.S., Deeds, § 53, pp. 259-260. This rule is recognized generally and by this Court. 16 Am.Jur. p. 645, Deeds, sec. 358; Raynor v. Raynor, 212 N.C. 181, 193 S.E. 216; Stephens Co. v. Lisk, 240 N.C. 289, 82 S.E.2d 99.

The crucial question is whether the quoted provision is void as an unlawful restraint upon alienation, repugnant to the nature of the estate granted, or valid as a personal pre-emptive right granted C. O. Story to purchase at such price as defendant is willing to sell to another. Appellee relies upon Hardy v. Galloway, 111 N.C. 519, 522, 15 S.E. 890, 32 Am. St. Rep. 828.' Appellant undertakes to distinguish the Hardy case, contending that the provision under consideration here imposes no unlawful restraint upon alienation. See: Restatement of the Law, Property, sec. 413; American Law of Property (1952), Vol. VI, pp. 506-512, secs. 26.64-26.67. For the reason stated below, we refrain from discussion of this question of law.

The complaint expressly alleges that defendant is under written contract to convey the lands to the State of North Carolina. Hence, the ultimate question for determination is whether plaintiff or the State of North Carolina is entitled to specific performance. This determination appears to turn on the validity of the provision in plaintiff's deed to defendant.

Decision now would be conclusive only as between plaintiff and defendant. A complete determination of the controversy cannot be made without the presence of the State of North Carolina. G.S. § 1-73. It is not a party to this action, nor does it appear that it has had notice thereof. But its right, if any, to compel specific performance to it of the lands concerned here would be vitally affected by the precedent of decision now made. Under the facts alleged it is entitled to be heard before decision is made. Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344.

Hence, the judgment sustaining demurrer is vacated and the cause remanded, with direction that the court below cause notice, with copy of the summons and complaint, to be served on the State of North Carolina, allowing it 30 days from such service to make itself a party hereto, if it so desires, and assert its rights, if any, to the lands. Upon expiration of the time so prescribed, the court below will consider the cause de novo upon the pleadings then before it, without prejudice to any party on account of Judge Moore's judgment of 28 April, 1954, or on account of what is stated herein.

Remanded, with directions.