Solon Lodge No. 9 Knights of Pythias Co. v. Ionic Lodge Free Ancient & Accepted Masons No. 72 Co.

Bobbitt, J. A prior action, commenced 12 March, 1949, was instituted sub nomine Ionic Lodge #72 F. & A. A. M. against the respondent herein and others. It involved the identical realty and essentially the same controversy. Ionic Lodge v. Masons, 232 N.C. 252, 59 S.E. 2d 829; S.c. on rehearing, 232 N.C. 648, 62 S.E. 2d 73. The final decision affirmed dismissal of the action on the ground that under the statutory *286 provisions then in force the plaintiff lacked legal capacity to sue in its common or collective name. Prior to the enactment of the statute (1955) now codified as G.S. 1-69.1, to wit, on 26 November,1952, the intervenors were made parties to this proceeding and thereupon pleaded in behalf of the Lodge and its members. In considering respondent’s appeal, we must assume the facts to be as found by the referee and by the court; and, upon these facts, Lodge v. Benevolent Asso., 231 N.C. 522, 58 S.E. 2d 109, would control decision here. The facts in the cited case resemble closely the facts under consideration. The applicable principles of law are clearly and fully stated therein by Ervin, J. Suffice to say: If all of the members of the Lodge at the time of the transactions of 1928-1929, and the Lodge itself in respect of said seven shares, accepted certificates of stock issued by the Corporation in exchange for their interest in the realty, and continuously thereafter until 1947 recognized the Corporation’s ownership of the realty as set forth in the referee’s findings of fact, the intervenors cannot prevail. The interest of the members of the Lodge in the property at the time of the transactions of 1928-1929 was a sufficient consideration for the issuance to them by the Corporation of said certificates of stock. The “finding of fact” made by the court, quoted above, to the effect that these transactions were without consideration, must be regarded an erroneous conclusion of law. As to the intervenors’ contention that the property owned by the Corporation was for use, under its charter, for charitable purposes only, suffice to say that the only question presented herein is their alleged ownership of it. Since our decision on intervenors’ appeal reopens the case as to the issues of fact, we refrain from further discussion as to the law applicable to the facts found by the referee and by the court. We consider now the appeal of the intervenors. They seek to enforce equitable rights, that is, to establish a trust in real property. In such action, when “the matter or amount in dispute is not less than the sum or value of five hundred dollars,” the court, of its own motion, may order a compulsory reference. G.S. 1-189(5); Reynolds v. Morton, 205 N.C. 491, 171 S.E. 781. But, in the absence of waiver, the parties to such action are entitled to a jury trial on the issues of fact raised by the pleadings. Erickson v. Starling, 235 N.C. 643, 654, 71 S.E. 2d 384, and cases cited. The intervenors have complied carefully with all procedural requirements to preserve their right to a jury trial. Bartlett v. Hopkins, 235 N.C. 165, 69 S.E. 2d 236; Brown v. Clement Co., 217 N.C. 47, 6 S.E. 2d 842; Booker v. Highlands, 198 N.C. 282, 151 S.E. 635. Indeed, a stipulation to that effect appears in the record. *287 The intervenors insist that, when the respondent interposed its said pleas in bar, they were entitled to a jury trial on the issues raised thereby before the court had authority to order a compulsory reference ; and that, since the order of reference was erroneously made, the proceedings before the referee should be set aside and the cause remanded for trial de novo before a jury on the issues raised by respondent’s said pleas in bar. If the position is otherwise sound, Ward v. Sewell, 214 N.C. 279, 199 S.E. 28, is authority for intervenors’ right to invoke the rule of law upon which the position is based. This Court has held repeatedly that “a plea in bar which extends to the whole cause of action so as to defeat it absolutely and entirely will repel a motion for a compulsory reference and no order of reference should be entered until the issues of fact raised by the plea is first determined.” Brown v. Clement Co., supra, and cases cited. And, estoppel, laches, and statutes of limitation have been held to constitute such pleas in bar. Grady v. Parker, 230 N.C. 166, 52 S.E. 2d 273; Graves v. Pritchett, 207 N.C. 518, 177 S.E. 641; Garland v. Arrowood, 172 N.C. 591, 90 S.E. 766; Bank v. Evans, 191 N.C. 535, 132 S.E. 563; Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091; Duckworth v. Duckworth, 144 N.C. 620, 57 S.E. 396. Even so, it seems appropriate, in respect of a case such as this, to consider the reason underlying the stated rule and the limits of its application; and in doing so we advert to the fact that the rule rests upon court decisions, not upon statute. In limine, attention is called to the fact that the sole purpose of the intervenors’ action was to establish a trust in real property; presently, it is to recover said fund of $2,902.06. It is not alleged that they are entitled to an accounting, for rents collected by the Corporation or otherwise. The rule under consideration had its origin in actions on an account or for an accounting. This Court held that a plea in bar, e.g., a plea of full settlement, should be disposed of before an order of compulsory reference was made. The obvious reason was that, if the plea was established, only delay, expense and futility would result from an •inquiry to determine the exact amount otherwise due by defendant to plaintiff. The rule was adopted prior to the enactment of The Code. Royster v. Wright, 118 N.C. 152, 24 S.E. 746; Dozier v. Sprouse, 54 N.C. 152; Douglas v. Caldwell, 64 N.C. 372. After enactment of The Code, the rule was continued in effect. Royster v. Wright, supra; Price v. Eccles, 73 N.C. 162; Smith v. Barringer, 74 N.C. 665; R. R. v. Morrison, 82 N.C. 141; Cox v. Cox, 84 N.C. 138; Sloan v. McMahon, 85 N.C. 296; Neal v. Becknell, 85 N.C. 299; Commissioners v. Raleigh, 88 N.C. 120; Clements v. Rogers, 95 N.C. 248; Jones v. Beaman, 117 N.C. 259, 23 *288 S.E. 248; Jones v. Wooten, 137 N.C. 421, 49 S.E. 915; Haywood County v. Welch, 209 N.C. 583, 183 S.E. 727; Grimes v. Beaufort County, 218 N.C. 164, 10 S.E. 2d 640; Lithographic Co. v. Mills, 222 N.C. 516, 23 S.E. 2d 913; McIntosh, N. C. P. & P. sec. 523, op. cit. Second Edition, sec. 1394. As stated by Ashe, J., in Cox v. Cox, supra: “When a case involves both an account and the trial of an issue by a jury, they cannot be investigated at the same time — the one must precede the other — and it would be needless to increase the expense and trouble by a reference, when the case might result adversely to the plaintiff upon the finding of the jury.” In such case, if the plea in bar is decided adversely to the defendant, there remains for determination, by reference or otherwise, the separate phase of the controversy, to wit, the exact amount due on the account or upon an accounting. In later cases, the rule is expressed as follows: “If the plaintiffs are not entitled to recover at all, it is useless to ascertain what amount they might recover if they had an enforceable cause of action.” (Italics added.) Stacy, C. J., in Grady v. Parker, supra; Preister v. Trust Co., 211 N.C. 51, 188 S.E. 622; Bank v. Fidelity Co., 126 N.C. 320, 35 S.E. 588. An examination of the decisions cited above and others in which the stated rule has been applied involved situations in which, if the plea in bar were decided adversely to defendant, there remained a controversy as to the amount. In Alston v. Robertson, 233 N.C. 309, 63 S.E. 2d 632, an action in ejectment, while no reference thereto is made in the reported case, the record therein discloses that plaintiff’s action also was to recover the reasonable rental value of the land as damages on account of defendant’s alleged wrongful possession. See: Williams v. Robertson, 235 N.C. 478, 70 S.E. 2d 692. In an action on an account, or for an accounting, or other action where plaintiff’s claim is a composite of various items, there are two separate and distinct controversies: first, the plea in bar, which if established would preclude plaintiff entirely; and second, the exact amount of plaintiff’s recovery in the event the issue arising on defendant’s plea in bar is decided in plaintiff’s favor. The fundamental idea is to avoid two separate trials when one may suffice to terminate the litigation. But here the intervenors’ cause of action is entire and indivisible. The sole issue is whether they can establish the alleged trust. Manifestly, they must prevail entirely or not at all. To establish the trust and to defeat respondent’s pleas in bar, they must rely on substantially the same evidence. To apply the rule, under the circumstances disclosed here, would forsake the reason therefor; for to do so would raise the possibility of.two separate and distinct trials when it appears clearly that one will suffice to dispose of the entire controversy. *289 Hence, the cause being a proper one for a compulsory reference, we conclude that the order of compulsory reference, under the pleadings herein, was not erroneous because of respondent’s pleas in bar. Even so, the order of compulsory reference does not deprive the intervenors of their constitutional right to a jury trial on the issues of fact raised by the pleadings and by their exceptions to the referee’s findings of fact. However, such trial is only upon the written evidence taken before the referee. The referee’s report, consisting of his findings of fact and conclusions of law, are not competent as evidence before the jury. Moore v. Whitley, 234 N.C. 150, 66 S.E. 2d 785, and cases cited. Respondent asserts that the intervenors’ cause of action is barred by the undisputed evidence. But, as stated above, the evidence is not before us. By stipulation, except for a fragment thereof, it was not brought forward. Moreover, as to estoppel, the burden of proof is on the respondent. Peek v. Trust Co., 242 N.C. 1, 86 S.E. 2d 745. As to laches, no conclusion of law in respondent’s favor can be reached otherwise than on the particular facts disclosed either by the intervenors’ evidence or established by the jury. Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83. And, with reference to the pleaded statutes of limitation, if and when the trust is established, the limitation begins to run as of the date it is shown the trust was in some manner repudiated. Teachey v. Gurley, supra; Sandlin v. Weaver, 240 N.C. 703, 83 S.E. 2d 806; Bowen v. Darden, 241 N.C. 11, 84 S.E. 2d 289. Whether, upon the evidence taken before the referee, the respondent is entitled to peremptory instructions on the issues raised by all or any of its pleas in bar, is a matter to be passed on by the trial judge before whom the case comes for jury trial. The foregoing disposition requires that the judgment of the court below be vacated. It is so ordered. And the cause is remanded for jury trial as indicated above. Judgment vacated and cause remanded. JOHNSON, J., not sitting.