Bizzell v. Bizzell , 237 N.C. 535 ( 1953 )

Ba.RNHill, J.

Whether this action be considered as a proceeding under the Declaratory Judgment Act or as an action to quiet title or remove a cloud from the title to the real property described in the complaint is of little importance. In either event the relief sought is the same. Plaintiffs seek to have the Court construe the last will and testament of Elizabeth Bizzell and to decree that the devise of the testatrix’s real property therein contained vested in the plaintiffs Bizzell a fee simple title to said land. On the other hand/the original defendants assert in their answer that said plaintiffs under said devise became seized, at most, of an estate for life and that they, the original defendants, are the owners of said land in fee, subject to said life estates. Therefore, a judgment decreeing the rights of the respective parties under said devise will settle the whole controversy.

Counsel in their argument in this Court requested the Court to construe the will and declare the rights of the respective parties thereunder and thus put an end to the controversy on this appeal. But this we are not at liberty to do. This is an appellate court and its prerogative is to consider and decide, on appeal, questions of law and legal inference raised by exceptions to rulings made and judgments entered in the Superior Courts of the State. Woodard v. Clark, 234 N.C. 215, 66 S.E. 2d 888; Trust Co. v. Waddell, ante, 342. This appeal involves only questions of proper pleading, and we must confine decision to the questions presented by the exceptive assignments of error contained in the record.

The court below erred in overruling the demurrer of plaintiffs to the cross action contained in the answer of the original defendants. It is conceded that the testator devised to plaintiffs Bizzell a life estate, or some lesser estate, in the land which is the subject- of this controversy. This being true, their deed to the plaintiffs Adams is valid in law, to convey whatever estate was devised to them until and unless it is vacated and annulled by a court of competent jurisdiction in an action instituted by them for that purpose, G.S. 1-57, or, if they are mentally incompetent as alleged, then in an action instituted by a person duly appointed by the court to prosecute the action in their behalf. G.S. 1-64; Rental Co. v. Justice, 211 N.C. 54, 188 S.E. 609.

What is here said in respect to the deed alleged in the cross action applies with equal force to the trust deeds executed by the plaintiffs. The original defendants are without legal capacity to maintain an action to vacate any one of them for fraud or undue influence or want of consideration. If we concede that a cause of action is alleged, the fact remains the right to maintain the cause does not belong to them. It rests in others. ' .

The demurrer to :the second further defense was .properly .overruled. The plaintiffs raise an issue of title, challenge the validity of the claim asserted by the original defendants, and pray judgment decreeing that the will of Elizabeth Bizzell devises said land. ..to them in fee. On this issue the original defendants must have their day in court. If the court is to construe the will and declare the respective rights of the parties thereunder, all parties must be accorded an opportunity to be heard. But to be heard the original defendants must allege their claim. This in substance they have done in their second further defense. The facts therein alleged are properly pleadable in this cause. Hancammon v. Carr, 229 N.C. 52, 47 S.E. 2d 614.

It follows that there was error in the judgment overruling.the motion to strike filed by the additional defendants. The allegations contained in and forming a part of the cross action are irrelevant and immaterial and must be stricken. Privette v. Privette, 230 N.C. 52, 51 S.E. 2d 925; Light Co. v. Bowman, 231 N.C. 332, 56 S.E. 2d 602.

In this connection we note that the additional defendants did not move to strike from the “third defense and cross action” those allegations which are essential to a proper presentation of the claim of ownership asserted by the original defendants. These allegations, not included in the motion to strike, are a proper part of the answer, notwithstanding the fact we reverse the judgment overruling the demurrer of plaintiffs to the cross action. That is to say, the original defendants have a right to plead that (l)i under a proper construction of the will of Elizabeth Bizzell they are seized of a remainder interest in said land, (2) the deed and the trust deeds 'referred to in the pleadings purport to convey said premises in fee, and (3) the claim of the plaintiffs and said instruments executed by them cast a cloud on their title; and pray judgment decreeing that they'are the owners of the land subject'to the limited estate devised to the plaintiffs Bizzell, free and clear of any right, title, or interest of the plaintiffs Adams or the additional defendants.

For the reasons stated the judgment entered in the court helow is

Reversed.

JOHNSON, J., took no part in the consideration or decision of this case.