Overman v. . Sims

Smith, C. J., (after stating the facts). We do not approve of this method of presenting a mere narrative of the facts, out of which the controversy springs, without any statement of the subject-matter of contention, and the conflicting claims of the litigants to be passed on and decided. While formal pleadings are not required, nor any preliminary process, to secure jurisdiction, the statute manifestly contemplates the existence of a controversy, and the case agreed should set out its nature, so that the Court may understand what is intended to be submitted, and render an intelligent decision. An analogy in the practice is found in suits in equity, when a bill of interpleader is filed to bring contesting claimants to the thing in the hands of the complainant, before the Court, for a binding and definite determination of the right, in which the contentions of the adversary parties are set out; and similar in this feature is the bill filed by a trustee to obtain the advice of the Court as to the disposition of a trust fund among rival claimants. Story Eq. Pl., §292. The form prescribed by the author of Abbott’s Forms, vol. 2, page 710, under the same clause, specifically describes the *454 controversy arising upon the facts, and the rulings to be made according to the opinion of the Court of their legal operation; and such is the form of presenting the matter in many of the adjudications of this Court. McKeithan v. Ray, 71 N. C., 165; Moore v. Hinnant, 87 N. C., 505. But there are precedents where jurisdiction has been assumed and exercised, and the nature of the controversy inferred from the mere statement of the facts. Hager v. Nixon, 69 N. C., 108; Lewis v. Commissioners, 74 N. C., 194; in neither of which were the rulings to be made pointed out, and in the former the agreement was, that the Judge “hear and determine the case, and render judgment therein, as if an action presenting this point were depending before him.” But most obviously as the Court cannot go outside of the case, for it constitutes the entire record, there should be in it some substitute for the pleadings in an ordinary action, in a brief explanation of the subject-matter of the contesting claims, and enable the Court to “ hear and determine the case,” thus presented. Upon the merits of the case, we concur in the opinion of the Judge, that a full and absolue title, free from contingent limitations, and such as the contract specifies, cannot be made to the premises. The deed of the sheriff is not in the transcript, but according to its provisions, as set out in the case, it makes a limitation, to take effect at the death of the life-tenant, Mary C., to such of the children and the representatives of such as meanwhile may die, of herself and husband Thomas R., who may then be living, and as it is uncertain who may fulfill these conditions, the estate is contingent,, and none of that class are known to represent the others and to bind them in the partition proceeding. It is true, as argued in the brief of plaintiff’s counsel, the title of the vendor would be good, if the two living children,, Caswell and Annie, should both die before their mother with *455 out issue, for in such event, the limitation over would be to Thomas R., their father in fee, and both he and they are parties to the suit for partition. But the contingency would remain, that the issue of Caswell and Annie would become entitled, if such there were, upon the death of the life-tenant, if Caswell and Annie were not then living to take. Dodd ex parte, Phil., Eq., 97; Watson v. Watson, 3 Jones Eq., 400 ; Williams v. Hassell, 74 N. C., 484; Miller ex parte, 90 N. C., 625; Young v. Young, at this Term. There is no error. No error. Affirmed.