Vaughan v. . Fallin

Walker, J. It appears that the land which is the subject of this controversy is situated in the county of Stokes, and this action to cancel and set aside the notes and contract for the sale and purchase of the same was brought in the county of Rockingham. The motion is to change the venue, or place of trial, to the county of Stokes. The motion was denied upon the ground, we presume, that the action was not for the recovery of real property, or for the determination of any interest therein, or for injuries thereto (Pell’s Revisal, sec. 419; C. S., 463). Those sections provide that “Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by law: “1. Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property. “2. Partition of real property. “3. Foreclosure of mortgage of real property. “4. Recovery of personal property.” We cannot see why this case is not governed by the principle stated in Councill v. Bailey, 154 N. C., 54. There the plaintiff sought to subject the land by sale thereof to the payment of the purchase money *321 or to compel specific performance by tbe defendant of tbe contract to buy tbe land wbicb was situated in tbe county of Rowan, while tbe action was brought in tbe county of Catawba. Upon a motion by defendant to change tbe place of trial to Rowan County, we held that tbe case should have been removed as prayed for by the defendant, and reversed tbe contrary judgment, citing Fraley v. March, 68 N. C., 160; Connor v. Dillard, 129 N. C., 50; Bridgers v. Ormond, 148 N. C., 375, to wbicb we now add Wofford v. Hampton, 173 N. C., 686. This case would seem to be tbe converse of Gouncill v. Bailey, .supra. In tbe latter, tbe relief demanded was tbe specific enforcement of tbe contract by a sale of the land, while here it is sought to cancel tbe notes and contract, but both involved tbe determination in some form of a right, or interest, in land. Tbe plaintiff bad an equitable right to a deed for tbe land upon paying or properly tendering tbe purchase money, and tbe cancellation of tbe defendant’s right or interest be sought to enforce because tbe contract bad been procured from him by fraud. "Whether bis right was enforced or annulled, it necessarily determined a right or an interest in tbe land, and by tbe terms of tbe statute it made no difference in what form this was done. Bridgers v. Ormond, supra, was an action to recover the possession of a deed for land which was alleged to be held in escrow. The Court said: “The complaint discloses that the purpose of the action is to recover possession of a deed that has never been in possession of the plaintiff. The deed was deposited in escrow, to be delivered upon the performance of a contract entered into by plaintiff and defendant Beaman in respect to the building of a railroad to Hookerton, and the construction of a depot. The land described in the deed is situated in the county of Greene. The plaintiff’s right to call for the delivery of the deed depends upon the determination of the fact, in his favor, that he has complied with certain conditions which entitle him to demand and receive tbe deed. If tbe allegations of tbe complaint are denied (which they must be taken to be for the purposes of this motion), then the right of the plaintiff to recover the land, not the deed solely, depends upon his ability to establish the facts he has alleged. Thus it is plain to us that the actual title to the land "will depend upon the findings of the jury, under tbe instructions of tbe court, to tbe issues submitted upon tbe pleadings. Tbe effect of a verdict and judgment for tbe plaintiff would be to transfer, not simply the deed, but the actual title of the land to him. If the deed should be destroyed in the meantime, the judgment of the court could be made to operate as a deed, or the court could decree the execution of another. Our statute is plain, and provides that actions for the recovery of real property or for the determination of any interest therein or for injuries *322 thereto must be tried in tbe county where the property is situated. While the plaintiff has now no such seizin as would enable him to maintain an action against a stranger for trespass upon land, he alleges an equitable title thereto, and when he establishes the allegations of his complaint, and a final decree is entered upon the findings, he will become seized, in fact and law, of the property.” Frailey v. March, supra, was an action against the defendant for specific performance of a contract to purchase land, and the Court held, by Justice Beade, that “the law of the verme of actions, with reference to the residence of the parties, does not govern this case, but the law of the venue with reference to the ‘subject of the action.’ It is substantially an action ‘for the foreclosure of a mortgage of real property’; and that must be tried in the county where the land is situated. C. C. P., 66.” It is true that, as a general rule, a jmrty seeking the aid of the court may select the forum (Hannon v. Power Co., 173 N. C., 522), but that case also holds that he may do so, except where not prohibited by public policy, as expressed by statute. It must follow that as the question has been finally and definitely settled by our statute and decisions, against the plaintiff’s contention and the judge’s ruling, the latter must be reversed and the case removed as prayed for by the defendant. Reversed.