Cherokee Home Demonstration Club v. Oxendine , 100 N.C. App. 622 ( 1990 )

LEWIS, Judge.

I. Dismissal of Plaintiff Club’s Complaint

Group II contends that their complaint was improperly dismissed by the trial judge. Their complaint was dismissed because plaintiff Home Demonstration Club allegedly does not have capacity to sue in its own name. An unincorporated association may sue in its own name, without naming any of the individual members composing it, but only if the association alleges in its complaint the “specific location of the recordation required by G.S. 66-68.” G.S. § 1-69.1. G.S. § 66-68 requires an association to file a certificate in the office of the register of deeds in the county where the association does business, showing the name of the association, the name of the owner or agent, and the addresses of each. Group II acknowledges this requirement, but distinguishes this situation on the grounds that it can sue and be sued in its own name regarding real property-held by the Club pursuant to G.S. § 39-24.

G.S. § 39-24 provides:

[voluntary organizations and associations of individuals organized for charitable, fraternal, religious, social or patriotic purposes, when organized for the purposes which are not prohibited by law, are hereby authorized and empowered to acquire real estate and to hold the same in their common or corporate names and may sue and be sued in their common or corporate names concerning real estate so held. . . .

Group I challenges the Club’s capacity to sue and cites us to the case of Highlands Township Taxpayers Assoc. v. Highlands Township Taxpayers Assoc., Inc., 62 N.C. App. 537, 303 S.E.2d 234 (1983), as controlling. In Highlands Township, this Court found that the failure of plaintiff unincorporated association to comply with the directives of G.S. § 1-69.1 was fatal to its complaint. “[B]efore an unincorporated association may gain the privilege of instituting a lawsuit in its common name, first there must be recordation of the necessary information required by G.S. 66-68 and the allegation of its specific location.” Id. at 539, 303 S.E.2d at 236. The court upheld dismissal. The Highlands court was faced with a conflict between the recordation requirements of G.S. § 1-69.1 and G.S. § 66-71, which stated that failure to record as required by G.S. § 1-69.1 was a misdemeanor, but that “this Article does not prevent a recovery by such person in any civil action brought in any of the courts of this State.” The court found that G.S. § 1-69.1 controlled the action, applying rules of statutory construction which are dispositive of the present issue.

G.S. § 39-24 was enacted in 1939. The amendment to G.S. § 1-69.1, which added the requirement of an allegation of G.S. § 66-68 recordation before suit may be brought by an unincorporated association in its common name, was enacted effective 1 October 1975. In the face of any irreconcilable conflict between the provisions of these two statutes, G.S. § 1-69.1, being the later enactment, will control or be regarded as a qualification of the earlier statute. Id.; see also State v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971). The requirements of G.S. § 1-69.1 are mandatory and failure to satisfy them is not exonerated by G.S. § 39-24. Highlands, supra, at 540, 303 S.E.2d 234, 236. The trial court was correct in dismissing plaintiff’s complaint.

II. Dismissal of Group I’s Counterclaim/Third-Party Complaint

Group I appeals the dismissal of their counterclaim/third-party complaint. Group II’s motion to dismiss was granted based upon G.S. § 1A-1, Rule 12(b)(6), failure to state a claim upon which relief can be granted.

Group I first seems to argue that the trial court erred in dismissing their complaint because they were denied readmittance to the Club based upon some language in the North Carolina Extension Homemaker Association, Inc.’s handbook which states that membership in that organization will not be denied based upon “color, race, or creed.” Group I argues that this creed entitles any person who applies for membership to be admitted in plaintiff club. We disagree. The plaintiff has no constitution, by-laws, rules or other governing provisions which control their membership. They have not adopted any other creed or constitution as their own. The fact that its members in the past have loosely adhered to the guidelines of the North Carolina Extension Homemaker Association Inc. is insufficient to show that this local group is in any way under the auspices of that State organization. Group I is not arguing that they were denied membership based upon any ethnic, religious or racial practices of the Club. There are no State or Federal statutes referred to in the complaint, and we can think of none applicable to this situation. Under these circumstances, their complaint must fail.

Group I also argues that the trial court erred in dismissing their complaint because each of the individuals who were members in the Club in 1962 took joint title to the property upon which the clubhouse is situated. They rely upon Venus Lodge No. 62 F. & A.M. v. Acne Benevolent Ass’n., Inc., 231 N.C. 522, 58 S.E.2d 109 (1950), which held that a conveyance to an unincorporated association is not void at common law, but instead vests title to the property in the individual members of the Association. Group II .argues that G.S. § 39-25 controls and therefore the conveyance is properly held in the name of the Cherokee Home Demonstration Club.

We agree with Group II and affirm. While it is true that G.S. § 1-69.1 requires an unincorporated association to allege its registration for purposes of bringing suit in its collective name, there is no concomitant requirement attached to its right to hold property under G.S. § 39-25. While this produces a somewhat awkward result, it is the responsibility of the legislature to clarify the rights and obligations of these associations to sue and hold real property. We find that under the wording of G.S. § 39-25, an unincorporated, unregistered association may hold real property in its common name; however, if the association wishes to bring suit concerning this property, it must be registered in accordance with G.S. § 66-68.

III. Conclusion

For the reasons stated above, we affirm the trial court’s dismissal of plaintiff’s complaint, and dismissal of defendant/third-party plaintiffs’ counterclaim/third-party complaint.

Affirmed.

Judges WELLS and Cozort concur.