Vandiford v. Vandiford

84 S.E.2d 278 (1954) 241 N.C. 42

W. A. VANDIFORD and Arthur Vandiford,
v.
H. G. VANDIFORD and wife, Montie Pearl Vandiford.

No. 317.

Supreme Court of North Carolina.

November 3, 1954.

J. Faison Thomson & Son, Goldsboro, Walter G. Sheppard, Snow Hill, for plaintiffs, appellees.

Jones, Reed & Griffin, Kinston, for defendants, appellants.

BOBBITT, Justice.

G.S. § 41-10, in pertinent part, provides: "An action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claims".

As stated by Denny, J., in Ramsey v. Ramsey, 224 N.C. 110, 29 S.E.2d 340, 342: "Ordinarily any person claiming title to real estate, whether in or out of possession, may maintain an action to remove a cloud from title against one who claims an interest in the property adverse to the claimant, and is required to allege only that the defendant claims an interest in the land in controversy. Plotkin v. Merchants' Bank, 188 N.C. 711, 125 S.E. 541; Carolina-Tennessee Power Co. v. Hiawassee [River] Power Co., 175 N.C. 668, 96 S.E. 99; Satterwhite v. Gallagher, 173 N.C. 525, 92 S.E. 369; Rumbo v. Gay Mfg. Co., 129 N.C. 9, 39 S.E. 581; Daniels v. [Fowler] Baxter, 120 N.C. 14, 26 S.E. 635." The cases cited indicate the liberal construction placed upon this statute in order that the use and marketability of realty will not be hampered by unresolved conflicting claims thereto.

Appellees (plaintiffs) emphasize the language of Hoke, J. (later C. J.) in Satterwhite v. Gallagher, supra [173 N.C. 525, 92 S.E. 370], and quoted in Carolina-Tennessee Power Co. v. Hiawassee Power Co., supra, to wit: "And it should and does extend to such adverse and wrongful claims, whether in writing or parol, whenever a claim by parol, if established, could create an interest or estate in the property, as in case of a parol trust or a lease not required to be in writing." (Italics added.) While the quoted statement is significant as dicta, it is plain that the beloved and distinguished jurist had in mind instances where the adverse claim asserted by the defendant depends for its establishment upon parol, e. g., a parol trust, an oral lease, etc. We have an entirely different situation in this case. Here the rights and liabilities of plaintiffs and of defendants, inter se, are governed by written contracts (Exhibits A and B), referred to in the complaint as the lease and agreement. Plaintiffs predicate their rights on these writings. Plaintiffs allege that defendants own the lands in fee subject to plaintiffs' rights under the lease and agreement.

The plaintiffs must own the real property in controversy, or have some estate or interest in it; and the defendants must assert some claim thereto adverse to the plaintiffs' title, estate or interest. These are essential elements of a statutory action to quiet title to realty. Wells v. Clayton, 236 N.C. 102, 107, 72 S.E.2d 16. The express purpose of the statutory action being the determination of adverse claims, a controversy cognizable thereunder must be one presently determinable.

The gist of the complaint is that, assuming the present written contracts continue in effect, plaintiffs upon the death of the last surviving defendant will become entitled to a deed; and that the defendants claim the right to will the lands to persons other than plaintiffs and in fact have executed a writing, in form a will, embodying such terms.

On the facts alleged, accepted as true on demurrer, plaintiffs are presently in possession and control of the lands, and defendants do not challenge the enjoyment by plaintiffs of rights to which they are presently entitled.

Whether plaintiffs' right to possession and control will continue through the lifetime of defendants will depend upon whether plaintiffs exercise the option given them under certain conditions to terminate the lease and agreement and upon whether plaintiffs continue to meet their obligations under its terms. Thus, the rights of plaintiffs hereafter will depend upon events now unknown and unforeseeable.

A will takes effect as of the death of the testator upon the probate thereof. G.S. § 31-39; G.S. § 31-41. Whether the defendants or either of them will die testate or intestate is unknown and unforeseeable. A paper writing, in form a will, executed by a person now living, is without legal significance either as a transfer of title or as a cloud thereon; for a person, having executed and revoked many such drafts, may die intestate. If the defendants or either of them should die leaving a will purporting to devise the lands to a person other than plaintiffs, the validity of such devise would depend upon the then existing rights and liabilities of the parties under the lease and agreement. If perchance plaintiffs should breach the contract, upon the death of the last surviving defendant the heirs at law could contest plaintiffs' claim to the lands just as effectively as could devisees under a will.

Assuming full performance by plaintiffs until the death of the last surviving defendant, plaintiffs are protected by their recorded contract against disposition of the lands by the defendants or either of them by will made in violation of plaintiffs' contract rights. Clark v. Butts, N.C., 83 S.E.2d 885, and cases cited. Compare: Schmidt v. Steinbach, 193 Mich. 640, 160 N.W. 448.

The action is not that of a vendee, the equitable owner under a contract to purchase realty, against a third party who claims also from the vendor or as a lien creditor of the vendor. 5 R.C.L. Cloud on Title, sec. 26; Alfrey v. Richardson, 204 Okl. 473, 231 P.2d 363. There is no allegation that defendants have conveyed or attempted to convey any interest or estate in the lands to a third party or that any third party asserts an interest therein.

Mere assertions of what defendants intend to do by way of willing the lands to persons other than plaintiffs, under the facts alleged, are not a sufficient basis for the statutory action to quiet title. 29 NCLR 332, and cases cited; 78 A.L.R. 40 et seq. This is true, a fortiori, when the defendants' right to leave the lands by will as of the date of the death of the last surviving defendant, is not presently determinable.

Plaintiffs do not define their interest in the lands, which they seek to have determined by judgment herein, but allege "that the plaintiffs own, and are seized of, such an interest in said lands that may be quieted by provisions of G.S. § 41-10," and "that the plaintiffs have instituted this action to quiet their title, to an interest in the lands," as contracted in Exhibit A. Hence, the action, in effect, is to ask the court to define the rights of the parties now and hereafter under the contract. The complaint fails to disclose any controversy or adverse claims as to plaintiffs' present rights. Future rights cannot be determined now because dependent upon events now unknown and unforeseeable. G.S. § 41-10 applies only to the extent the alleged adverse claims are presently determinable. Hence, under the facts alleged, this action does not lie.

For the reasons stated, the demurrer should have been sustained.

Reversed.