Jones v. Swain , 89 N.C. App. 663 ( 1988 )

367 S.E.2d 136 (1988) 89 N.C. App. 663

Robert L. JONES, as Trustee for William Isaac Swain, Under the Will of William E. Swain, and Marie Renee Swain
v.
Kimberly SWAIN.

No. 8710DC1127.

Court of Appeals of North Carolina.

April 19, 1988.

Manning, Fulton & Skinner by Robert S. Shields, Jr., Raleigh, for plaintiffs, appellees.

Dan Lynn, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

The question before us is whether the district court had authority to enter summary judgment for plaintiffs summarily evicting defendant from the premises at 1705 Oberlin Road.

G.S. 42-26 states:

Any tenant or lessee of any house or land, and the assigns under the tenant or legal representatives of such tenant or lessee, who holds over and continues in the possession of the demised premises, or any part thereof, without the permission of the landlord, and after demand made for its surrender, may be removed from such premises in the manner hereinafter prescribed in any of the following cases:

(1) When a tenant in possession of real estate holds over after his term has expired.

(2) When the tenant or lessee, or other person under him, has done or omitted any act by which, according to the stipulations of the lease, his estate has ceased.

(3) When any tenant or lessee of lands or tenements, who is in arrears for rent or has agreed to cultivate the demised premises and to pay a part of the crop to be made thereon as rent, or who has given to the lessor a lien on such crop as a security for the rent, deserts the demised premises, and leaves them unoccupied and uncultivated.

Under this statute it is no longer necessary to allege that a landlord-tenant relationship exists between the parties as a jurisdictional matter, but it is still necessary to show that the relationship exists in order to bring the case within the provisions of this section before the summary ejectment remedy may be properly granted. Chandler v. Savings and Loan Assoc., 24 N.C.App. 455, 211 S.E.2d 484 (1975). The remedy given by G.S. 42-26 is restricted to the case where the relation between the parties is simply that of landlord and tenant. Hauser v. Morrison, 146 N.C. 248, 59 S.E. 693 (1907). Furthermore, G.S. 42-26 was only intended to apply to a case in which the tenant entered into possession under some contract or lease, either actual or implied, with the supposed landlord, or with some person under whom the landlord claimed in privity, or where the tenant himself is in privity with some person who had so entered. McCombs v. Wallace, 66 N.C. 481 (1872).

The record before us discloses that defendant and her minor son, William Isaac Swain, have resided in the house at 1705 Oberlin Road since August 1986. Defendant and her son still live there. In his affidavit in support of his motion for summary judgment, the trustee, Robert L. Jones, states that "William Isaac Swain's mother, Kimberly Swain, has resided at 1705 Oberlin Road since approximately August 1986 and has paid not [sic] rent during this period nor has any been requested from her." Jones, in his affidavit, further states that defendant "is residing in the premises under no lease."

There is absolutely no evidence in this record that the trustee or Marie Renee Swain are "landlords" or that defendant is a "tenant." Furthermore, there is absolutely no evidence in this record that there was ever any contract or lease, actual or implied, between the parties or between defendant and a person under whom the plaintiffs claim in privity. Thus, the statute providing for summary ejectment, G.S. 42-26, has no application in this case and the district court therefore had no authority to enter summary judgment summarily ejecting defendant.

Our decision makes it unnecessary to discuss other defects appearing in the record with respect to plaintiffs' claim to summarily evict defendant. We point out, however, that the trustee has no authority to administer the estate of William E. Swain—that is the exclusive province of the executrix.

Summary judgment summarily evicting defendant from the premises at 1705 Oberlin Road is reversed, and the cause is remanded to the district court for the entry of an order dismissing plaintiffs' claim to summarily evict defendant.

Reversed and remanded.

PHILLIPS and EAGLES, JJ., concur.