Lamb v. Staples

DeNNY, J. The defendants having breached their alleged contract with the plaintiff by conveying a portion of the premises they agreed to convey to him, to L. E. Collins, they are not now in a position to comply with a judgment for specific performance. Moreover, their grantee, L. E. Collins, the present owner of a portion of the 1,200-acre tract of land, is not a party to this action. White v. Rankin, 206 N.C. 104, 173 S.E. 282. The plaintiff in his complaint does not undertake to allege facts to support a decree for specific performance, but on the contrary bottoms his action on the breach of the contract, and seeks to recover damages resulting therefrom. Such an action is not for the recovery of real prop *168 erty or any interest therein as contemplated by G.S. 1-76. White v. Rankin, supra; Warren v. Herrington, 171 N.C. 165, 88 S.E. 139; Max v. Harris, 125 N.C. 345, 34 S.E. 437. The facts alleged in the complaint in the case of Mortgage Co. v. Long, 205 N.C. 533, 172 S.E. 209, upon wbicb the defendants are relying, were held by the court to be sufficient to support a decree of foreclosure although the prayer for relief was for a money judgment only on a note which the plaintiff alleged was secured by a mortgage. The prayer was also for such other and further relief as plaintiff might be entitled in law or equity. Since, under the plaintiff’s allegations, it was clearly entitled to a decree of foreclosure, the court held the motion to remove to the county in which the mortgaged premises were situate, should have been allowed. It is the general rule that a plaintiff may obtain such relief in an action as he is entitled to upon the facts alleged in his complaint and established by his proof. Therefore, the relief to which a plaintiff is entitled must be determined by the allegations in his complaint and not by the specific relief for which he prays. Mortgage Co. v. Long, supra; Jones v. R. R., 193 N.C. 590, 137 S.E. 706; Shrago v. Gulley, 174 N.C. 135, 93 S.E. 458; Warren v. Herrington, supra; Baber v. Hanie, 163 N.C. 588, 80 S.E. 57; Councill v. Bailey, 154 N.C. 54, 69 S.E. 760. In applying this rule to the allegations of plaintiff’s complaint, it is clear that the plaintiff is seeking damages only and not specific performance. Consequently, the denial of the defendant’s motion to remove this action to Camden County for trial, will be upheld. Judgment of the court below is Affirmed. VALENTIN®, J., took no part in the consideration or decision of this case.