Paschal v. Autry

Parker, J. Defendants’ assignments of error are not supported by any exceptions, except in the assignments of error. We allowed their motion to “group the exceptions to the assignments of error,” but even now their assignments of error are not supported by any exceptions, except in the assignments of error. The judgment of Judge Clark confirming the referee’s report awards damages for plaintiffs against defendant David McKay for the wrongful cutting and removal of timber from the lands described in the complaint, adjudicates the boundaries and the location on the premises of the lands of the heirs of L. B. Paschal, and further adjudges that defendants have acquired title by adverse possession for more than twenty years without color of title to a cultivated field, “which lies within the bounds of the lands contended for by the plaintiffs, to which they have record legal title.” In respect to the cutting of timber plaintiffs’ evidence shows the following: W. A. Johnson for the Autrys on 11 and 12 January 1955 cut timber on the lands claimed by the original plaintiffs. In 1955 David McKay cut one thousand trees and Mr. Paschal- — the record does not show which Paschal — stopped him. In 1958 David McKay’s *172 boys cut around 75 cords worth four or five dollars a cord. L. B. Paschal died 9 July 1958. It would seem that the original plaintiffs were L. B. Paschal and H. L. Paschal, who apparently owned this 96 acres of land when the action was instituted. The record does not disclose the date of the conveyance by H. L. Paschal and wife of his interest in this land to L. B. Paschal. The evidence of plaintiffs tends to show that the cutting and removal of timber from the 96 acre tract during the year 1955 occurred during the lifetime of L. B. Paschal, and that at the time of the 1955 cutting and removal he and H. L. Paschal owned the 96 acre tract of land. In other words, the cause of action for the cutting and removal of the timber during the year 1955 accrued during the lifetime of L. B. Paschal, to him in proportion to his interest in the land. We cannot determine from the record whether the 1958 cutting by David McKay’s boys accrued prior to or subsequent to L. B. Paschal’s death. The rule of the common law that a personal right of action dies with the person has been changed by G.S. 1-74 and G.S. 28-172, and if a cause of action for damages for the wrongful cutting and removal of timber from realty belonging to L. B. Paschal deceased, in whole or in part, accrued during his lifetime, the action for damages survives to his executors, and must be brought by his executors rather than by his heirs or devisees. However, if such an injury to the realty was committed after his death, the right of action belongs to his heirs or devisees. Mast v. Sapp, 140 N.C. 533, 53 S.E. 350, 5 L.R.A. (N.S) 379, 111 Am. St. Rep. 864, 6 Ann. Cas. 384; Suskin v. Maryland Trust Co., 214 N.C. 347, 199 S.E. 276; McIntyre v. Josey, 239 N.C. 109, 79 S.E. 2d 202; Strong’s N. C. Index, Yol. 1, Abatement and Revival, sec. 9; Penn Mutual Life Ins. Co. v. Heiss, 141 Ill. 35, 33 Am. St. Rep. 273; 21 Am. Jur., Executors and Administrators, sec. 910; 33 C.J.S., Executors and Administrators, pp. 1055-6, rights of action connected with realty. G.S. 28-175, Actions which do not survive, has no application here. See also Inman v. Meares, 247 N.C. 661, 101 S.E. 2d 692. We are not confronted here with special circumstances, for instance, where there is no administration of an estate and no necessity for an administration, as where there are no debts against it, etc. In such a case, it seems that the heirs’ right of action for injury to real property, which accrued before the intestate’s death, is generally recognized in most jurisdictions. 26A C.J.S., Descent and Distribution, sec. 85. The judgment affirms the referee’s report, except the judgment reduces the amount of damages awarded to plaintiffs against David McKay. We cannot determine from the judgment and referee’s report whether the award of such damages included the cutting of tim *173 ber by David McKay’s boys in 1958, as shown by plaintiffs’ evidence, and if so, whether this cutting of timber occurred prior to, or subsequent to, L. B. Paschal’s death. If any cutting of timber by David McKay’s boys occurred subsequent to L. B. Paschal’s death, it cannot be recovered in an action by his executors, but the action must be brought by his devisees or heirs. The Guilford National Bank appears here as a coexecutor and a party plaintiff. It is a matter of common knowledge that this bank no longer exists, but has been merged into the North Carolina National Bank, which should be substituted as party plaintiff. The judgment adjudicates that the defendants are the owners of a cultivated field by reason of their actual adverse possession of it for twenty years without color of title, which cultivated field lies within the bounds of the lands contended for by the plaintiffs, and to which plaintiffs have record legal title. Defendants in their answer and amended answer have not alleged that they have acquired title by reason of twenty years adverse possession to any part of the land described in the complaint as belonging to the devisees or heirs of L. B. Paschal deceased, and, therefore, they cannot recover any part of the land described in the complaint by reason of twenty years adverse possession, no matter what their proof is. To establish a cause of action there must be both allegata and probata, and the two must correspond. Strong’s N. C. Index, Vol. 3, Pleadings, sec. 28, where many cases are cited. This manifest error of law appears on the face of the record proper. As the devisees or heirs of L. B. Paschal deceased are not parties to the action, they are not bound by this adjudication. Carney v. Edwards, 256 N.C. 20, 122 S.E. 2d 786. The judgment affirming the referee’s report, except as to the reduction of damages awarded plaintiffs against David McKay, adjudicates the boundaries and location on the premises of the land described in the complaint. It would seem that it is necessary to determine these questions before it can be determined whether any timber was wrongfully cut and removed by the defendants, or any one of them, from the land described in the complaint. That was the theory of the trial below. “Title to land of decedents does not vest in their executors but in their heirs at law or devisees.” Hinkle v. Walker, 213 N.C. 657, 197 S.E. 129. The executors of L. B. Paschal have no right to maintain a cause of action to determine the boundaries and the location on the premises of the land described in the complaint owned by their decedent. The realty of their decedent did not vest in them, and they have no power to maintain an action concerning the realty, unless there is a provision in the will to that effect, and that is not shown. *174 The will is not in the record. This Court held in Floyd v. Herring, 64 N.C. 409, following Ferebee v. Procter, 19 N.C. 439, that “A personal representative has no control of the freehold estate of the deceased, unless it is vested in him by a will, or where there is a deficiency of personal assets and he obtains a license to sell real estate for the payment of debts. The control derived from a will may be either a naked power of sale or a power coupled with an interest. The heir of the testator is not divested of the estate which the law casts upon him, by any power or trust until it is executed.” This is quoted in Speed v. Perry, 167 N.C. 122, 83 S.E. 176, and also in part in Linker v. Linker, 213 N.C. 351, 196 S.E. 329. “Under the law, an administrator has no inherent interest in, title to, or control over the realty of his intestate.” Pack v. Newman, 232 N.C. 397, 61 S.E. 2d 90. “In the absence of a statute or will conferring title to, or the possession of, a decedent's realty upon the executor or administrator or giving him the right to maintain actions concerning the realty, the right of litigation concerning the realty of a decedent is vested solely in his heirs to the exclusion of the personal representative of the decedent.” 21 Am. Jur., Executors and Administrators, sec. 1007. See Strong’s N. C. Index, Vol. 2, Executors and Administrators, sec. 6. The devisees or heirs at law of L. B. Paschal deceased are not bound by a judgment adjudicating the boundaries and fixing the location on the premises of the realty of L. B. Paschal deceased rendered in a cause to which they are not parties. Oxendine v. Lewis, 251 N.C. 702, 111 S.E. 2d 870. It appears from the answer that all the heirs of Edward Autry are not parties defendant, and that the defendants who are some of his heirs defend the “action for themselves and numerous other heirs of Edward Autry as a class.” Plow numerous these other heirs are the record does not show. Nor does it appear that the interest of the “other heirs” is similar to and consistent with those who are defendants. It would seem that the safe, if not necessary, procedure would be to make these “other heirs” parties defendant, so as to comply with due process, and bind them by the judgment finally rendered. Defendants’ exception to the judgment raises the question whether any error of law appears on the face of the record proper. This includes the question whether the facts found and admitted are sufficient to support the judgment, or whether the judgment is regular in form and supported by the verdict. Moore v. Owens, 255 N.C. 336, 121 S.E. 2d 540. For manifest error of law appearing on the face of the record proper adjudicating the defendants the owners by twenty years adverse pos *175 session without color of title of a cultivated field to which the devi-sees or heirs of L. B. Paschal deceased have record title, and for the reason that the judgment adjudges the boundaries and location on the premises of the land described in the complaint, a cause of action which the executors of L. B. Paschal deceased cannot maintain, and for the further reason that we cannot determine from the record whether the award of damages includes wrongful cutting and removal of timber occurring after L. B. Paschal's death, the judgment below is set aside and a new trial is ordered. The devisees or heirs at law of L. B. Paschal deceased should be made parties plaintiff, and all the heirs of Edward Autry deceased should be made parties defendant, in order that all the matters in controversy here between them may be finally adjudicated, and all such parties bound by the judgment finally rendered. It would seem that the parties should apply to the trial court for permission to recast their pleadings so as clearly to allege the matters in controversy between them. Error and remanded.