Williams v. . McRackan

CLARK, C. J., concurring. There was motion before clerk of said county for change of venue to the county of Columbus. The clerk having denied the motion, on appeal his Honor ordered the removal as a matter of right on the ground that the action involved the determination of a right or interest in realty. Thereupon plaintiff excepted and appealed. Our statute, C. S., sec. 463, subsec. 1, provides that actions for 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, shall be tried in the county in which the subject of the action or some part thereof is situate, subject to the power of the court to change the place of trial in the cases provided by law. *Page 382 From a perusal of the pleadings in the cause it appears that the action is one to impress a trust in favor of plaintiff on certain lands situate in Columbus County, the legal title to same being in the defendant, a resident of that county. It is true that the complaint alleges that the defendant has sold an indeterminate portion of said lands to innocent third parties and demands an accounting, but it also appears in the pleadings that the remainder of said lands is in possession and control of the defendant, who has the legal title thereto, and that plaintiffs' right, both as to the accounting and against the remaining realty, is dependent upon the establishment of the trust as alleged. This being true, plaintiffs' cause of action clearly involves the determination of an interest in realty, and plaintiffs may not avoid the force and effect of this statutory regulation by merely failing to pray for relief to which their alleged facts, if established, would entitle them. Vaughan v. Fallin, 183 N.C. 318; Woffordv. Hampton, 173 N.C. 686; Councill v. Bailey, 154 N.C. 54. Under an amendment to the above section enacted in 1921, Extra Session, chapter 92, subsection 15, the power to entertain a motion of this character is conferred upon the clerk, subject to an appeal to the judge at the next ensuing term, the course properly pursued in this instance, and in the exercise of this appellate power, we are of opinion that his Honor has correctly ruled that the cause be removed for trial to the county of Columbus. Affirmed.