North Carolina State Highway Commission v. Gamble , 1969 N.C. App. LEXIS 1229 ( 1969 )

VaughN, J.

Duke Power Company is not a party to the action. The Court is called upon to construe the deed from Duke and determine whether Dulce conveyed the tract in dispute to the defendants or whether title to the tract was retained by Duke, it having been stipulated that Duke owned the tract at the time of the conveyance.

Reference to Britt v. Children’s Homes, 249 N.C. 409, 106 S.E. 2d 474, is thought to be appropriate. The plaintiffs in that case sought specific performance of a contract wherein defendant had agreed to purchase land from the plaintiffs who had acquired the same from one Odum. The defendants contended the deed from Odum to plaintiffs conveyed only a defeasible fee. The trial court concluded plaintiffs could convey in fee simple and decreed specific performance. The Supreme Court vacated the judgment and remanded the cause for additional parties, saying: “The Odums are not parties to the action. They cannot be bound without an opportunity to be heard ... no judicial declaration should be made which could have no binding effect, but which might seriously cloud and interfere with such right as the Odums may have.”

A similar question arose in Oxendine v. Lewis, 251 N.C. 702, 111 S.E. 2d 870. There the defendant refused to accept the deed tendered by the plaintiff Oxendine on the ground that the plaintiff had previously executed a deed to Melinda Hunt. Oxendine contended his deed to Melinda Hunt conveyed only a life estate and that upon her death prior to the execution of the contract sought to be enforced, he became the owner in fee. On appeal the judgment ordering specific performance was set aside and the cause remanded for additional parties. The Supreme Court stated:

“Involved in this action are apparently conflicting provisions of a deed. The court is called upon to resolve the conflict. In order that its judgment may be binding on all parties in interest and be a final termination of the controversy, the court should have before it all the heirs at law of Melinda Oxendine Hunt. The absent heirs are not bound by the judgment in a cause to which they are not parties. Our procedure requires that they be brought in and given an opportunity to be heard.”

When it appears, as here, in a case involving the construction of a deed that the absence of a party prevents the entry of a judgment fully settling and determining the question of interpretation, we think the court should refuse to deal with the merits of the case until the absent party is brought in. Morganton v. Hutton and Bourbonnais Co., 247 N.C. 666, 101 S.E. 2d 679; Edmondson v. Henderson, 246 N.C. 634, 99 S.E. 2d 869.

Following the practice in Underwood v. Stafford, 270 N.C. 700, 155 S.E. 2d 211; Bank v. Jordan, 252 N.C. 419, 114 S.E. 2d 82; Oxendine v. Lewis, supra; Britt v. Children’s Homes, supra; Cutler v. Winfield, 241 N.C. 555, 85 S.E. 2d 913; and other cases cited, the order appealed from is vacated and the cause is remanded to the Superior Court where the additional party or parties necessary to a decision may be made.

Vacated and remanded.

BROCK and Britt, JJ., concur.