SPOONER'S CREEK LAND CORPORATION v. Styron , 7 N.C. App. 25 ( 1970 )

171 S.E.2d 215 (1969) 7 N.C. App. 25

SPOONER'S CREEK LAND CORPORATION
v.
Roma STYRON and wife, Catherine Styron.

No. 693SC398.

Court of Appeals of North Carolina.

December 17, 1969. Certiorari Allowed February 3, 1970.

Nelson Taylor, for plaintiff appellees.

Boshamer & Graham, by Otho L. Graham, Morehead City, for defendant appellants.

VAUGHN, Judge.

The sufficiency of a deed to convey title can be adjudicated by the submission of a controversy without action under G.S. § 1-250; however, all persons having an interest in the controversy must be parties to the end that they may be concluded by the judgment and the controversy be finally adjudicated as in the case of an action. Peel v. Moore, 244 N.C. 512, 94 S.E.2d 491; Consolidated Realty Corp. v. Koon, 216 N.C. 295, 4 S.E.2d 850.

The principle is well settled that where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use. In a strict sense it is not a dedication, for a dedication must be made to the public and not to part of the public. It is a right in the nature of an easement appurtenant. Whether it be called an easement or a dedication, the right of the lot owners to the use of the streets, parks and playgrounds may not be extinguished or diminished except by agreement or estoppel. This is true because the existence of the right was an inducement to and a part of the consideration for the purchase of the lots. Cleveland Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30.

The agreed statement of facts in this case discloses that "other parties have purchased lots within Spooner's Creek Harbor, Inc., Section 1, with reference to the aforesaid map." Although these purchasers clearly have an interest in the controversy, they are not parties to this controversy without action. It is axiomatic that judgment rendered by a court against a citizen affecting his vested rights in an action or proceeding to which he is not a party is absolutely void as to him. The Buncombe County Board of Health v. Brown, 271 N.C. 401, 156 S.E.2d 708. Since others have purchased lots within the subdivision with reference to the map, no judicial declaration should be made which has no binding effect, but which might seriously cloud and interfere with such rights as they might have. Britt v. Baptist Children's Homes, 249 N.C. 409, 106 S.E.2d 474.

Except for certain restrictions not relevant to this appeal, the contract between the plaintiff and the defendant provided that the property would be conveyed free and clear of all encumbrances. Under such circumstances equity will not compel the defendant to comply with the contract until the rights, if any, of purchasers of lots in the subdivision have been determined. Story v. Walcott, 240 N.C. 622, 83 S.E.2d 498; Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344.

Three of the four assignments of error brought forward by the defendant are exceptions to "findings of fact" by the trial judge. Upon submission of a controversy without action under G.S. § 1-250, the cause is for determination on the agreed facts. The court is without authority to find additional facts or to infer or deduce further facts from those given. Sparrow v. American Fire & Casualty Co., 243 N.C. 60, 89 S.E.2d 800; City of Greensboro v. Wall, 247 N.C. 516, 101 S.E.2d 413; Consolidated Realty Corp. v. Koon, supra, and cases cited. Ordinarily it is only when ultimate, not merely evidentiary, facts are contained in the agreed statement that there is a genuine submission of an agreed case. 3 Am.Jur.2d, Agreed Case, § 33, p. 744. Ultimate facts are the final facts required to establish the plaintiff's cause of action or the defendant's defense; and evidentiary facts are those subsidiary facts required to prove the ultimate facts. Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639. The facts admitted must be so conclusive and comprehensive in their character as to present only bare questions of law for the court. Trustees of Elon College v. Elon Banking & Trust Company, 182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205.

It may well be that agreement on the ultimate facts in this controversy would require too grave and serious an admission, if not a fatal one, on the part of one or more of the litigants. If so, the facts may be determined in the crucible of actual controversy before a jury, or by the court if the present litigants as well as all other necessary parties can agree to waive trial by jury.

Reversed.

BROCK, J., concurs.

BRITT, J., dissents.