Lee v. . Thornton

AlleN, J. One who is not in possession of land may bring an action to set aside a deed for fraud and undue influence and in the same action recover possession of tbe land and tbe rents and profits, as was done in Reed v. Exum, 84 N. C., 430, or, whether in possession or not, be may prosecute his action to set aside tbe deed and, upon a decree being rendered in his favor, apply to tbe court by supplemental petition for such writ as will render the decree effective, usually a writ of ass’stance, which was tbe course pursued in Root v. Woolworth, 150 U. S., 401. “Tbe power to issue tbe writ results from tbe principle tbat tbe jurisdiction of tbe court to enforce its decree is coextensive witb its jurisdiction to determine tbe rights of tbe parties, and the court will carry its decrees into full execution, where it can do so justly, without relying on tbe cooperation of any other tribunal. This is a rule of such practical utility in promoting tbe ends of justice, preventing unnecessary suits, saving expense, and avoiding delay, as commends itself strongly to tbe approbation of tbe courts of equity.” 2 R. C. L., 728. *210 “It has been, said tbat tbe most familiar instance of its use is where land has been sold under a decree foreclosing a mortgage. Harding v. Harker, 17 Idaho, 341; Jones v. Hooper, 50 Miss., 513. The writ is not limited, however, to cases of the foreclosure of mortgages, but extends to all actions brought for the purpose of determining the rights of the litigants to the title or possession of real estate after judgment declaring such rights. Schenk v. Conover, 13 N. J. Eq., 223; 78 Am. Dec., 95; Knight v. Houghtalling, 94 N. C., 408; Stanley v. Sullivan, 71 Wis., 585. See, also, Yates v. Hambly, 2 Atk. (Eng.), 362; Adamson v. Adamson, 12 Ont. Pr., 21.” Ann. Cases, 1913 D, 1121. The same principle is declared in Clarke v. Aldridge, 162 N. C., 328, and we have found nothing to the contrary except Clay v. Hammond, 199 Ill., 370, which limits the exercise of the jurisdiction to those decrees which pass the title, and of this last case the learned annotator says, in 93 A. S. R., 156, after expressing his disapproval of the doctrine announced, “We see no occasion to recede from our views heretofore expressed in section 37d of Freeman on Executions, in speaking of writs of assistance, as follows: ‘As to the decrees or orders which may justify the issuing of this writ, it may be stated broadly that whenever there has been an adjudication in equity from which it appears that a party is entitled to be in possession of property, the court will not require him to bring some further or independent suit or action, but will grant him this writ, entitling him to be placed in possession of the property. This Is but an application of the general principle that when a court of chancery obtains jurisdiction of the subject-matter of a suit it will retain it to the end that justice may be done between the parties.’ ” It follows, therefore, the second action was unnecessary as the plaintiff could have been put in possession in the first, and, under our system, which administers law and equity in one action, he could also have had the amount of the rents and profits ascertained; but as no objection has been made on this ground, and the right to possession has been denied, these two actions ought to be consolidated and heard together, to the end that a writ issue putting the plaintiff in possession of the land and turning the defendants out, and that the rents and profits be determined, which are the only questions unsettled in those actions. In the proceeding for the allotment of dower the defendant sets up as a defense that the petitioner committed adultery in the lifetime of her husband and was not living with him at his death, which, under Revisal, sec. 3083, may be pleaded in bar of any proceeding for dower. It appears, therefore, that whether the order is treated as one of consolidation and a reference of the consolidated action, or as a reference of each action and proceeding under one form, in either event a compulsory reference has been ordered, when the only question open in the *211 two actions is the amount of the rents, and when in the dower proceeding there is a plea in bar undetermined. Did the court have the power to order a reference under these conditions? ¥e think not. The right to refer by consent is without limit, subject to the exceptions mentioned, which are not material here, the statute providing that “All, or any of the issues in the action, whether of fact or of law, may be referred, upon the written consent of the parties, except in actions to annul a marriage or for divorce and separation.” Eevisal, sec. 518. But the court cannot order a compulsory reference except in the cases enumerated in Eevisal, sec. 519, nor can such an order be made when there is a plea in bar undetermined. This distinction exists because in the compulsory reference the parties reserve their right to a jury trial upon the coming in of the report of the referee, and as the parties will be subjected to the expense and delay of two trials, it ought not to be resorted to for the trial of the issues raised by the pleadings, except when a long account, complicated boundary, or some other intricate questions arise which cannot be intelligently investigated before a jury (Hall v. Craige, 65 N. C., 53; Peyton v. Shoe Co., 167 N. C., 282), nor when a plea in bar has not first been tried (Oldham v. Reiger, 145 N. C., 255), and in the actions before us there is one single simple question of the rental value of a small body of land for two or three years, and in the dower proceeding there is a plea in bar. The order was improvidently entered and will be set aside. Eeversed.