Wise v. Isenhour , 9 N.C. App. 237 ( 1970 )

175 S.E.2d 772 (1970)

Golden B. WISE and wife, Helen O. Wise
v.
Carl L. ISENHOUR and Isenhour Real Estate and Construction Company, Inc.

No. 7026SC416.

Court of Appeals of North Carolina.

August 5, 1970. Certiorari Denied October 5, 1970.

Williams, Willeford & Boger, by Thomas M. Grady, Kannapolis, for appellants.

Craighill, Rendleman & Clarkson, by Hugh B. Campbell, Jr., Charlotte, for appellees.

BROCK, Judge.

Defendants made a motion for change of venue as a matter of right, by virtue of G.S. § 1-76, before time for answering expired.

The pertinent portion of G.S. § 1-76 reads:

"Where subject of action situated.—Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by law:

(1) Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property."

The sole question presented by this appeal is whether the action is removable as a matter of right to the county in which the land is situate.

The form of the action alleged in the complaint determines whether an action is local or transitory. Thompson v. Horrell, 272 N.C. 503, 158 S.E.2d 633.

"The test is this: If the judgment to which plaintiff would be entitled upon the allegations of the complaint will affect the title to land, the action is local and must be tried in the county where the land lies unless defendant waives the proper venue; otherwise, the action is transitory and must be tried in the county where one or more of the parties reside at the commencement of the action." Thompson v. Horrell, supra.

Plaintiff's action is to recover monetary damages for breach of the contract; and to remove the notice of lien defendant has filed in Rowan County. An action to recover monetary damages for breach of a contract to construct a house is transitory and is not a local action within the meaning of G.S. § 1-76(1); plaintiff's purpose is not to recover real property, not to determine an estate or interest in land, and not to recover for damages to realty. Thompson v. Horrell, supra.

Defendants contend, however, that since plaintiffs also request the court to remove the notice of lien, this makes the action local and removable as a matter of right pursuant to G.S. § 1-76(1).

It is well settled that a lien created by a docketed judgment does not confer an estate or interest in real estate within the meaning of G.S. § 1-76, but merely the right to subject the realty to the payment of the judgment by sale of the same under execution. Baruch v. Long, 117 N.C. 509, 23 S.E. 447. This being so, mere notice of a claim of lien would not confer a greater right or interest in the real estate than a docketed judgment and would not bring this action within the purview of G.S. § 1-76(1).

"Title to realty must be directly affected by the judgment, in order to render the action local, and an action is not necessarily local because it incidentally involves the title to land or a right or interest therein, * * * It is the principal object involved in the action which determines the question, and if title is principally involved or if the judgment or decree operates directly and primarily on the estate or title, and not alone in personam against the parties, the action will be held local." Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 201, 154 S.E.2d 320. The principal object involved in the present action is monetary damages. Plaintiffs do not seek a judgment that would affect an interest in land, but seek a judgment in personam. It is not, therefore, a local action within the meaning of G.S. § 1-76(1), and defendants are not entitled to have the action removed to Rowan County as a matter of right.

Affirmed.

MORRIS and GRAHAM, JJ., concur.