City of Hendersonville v. Salvation Army

102 S.E.2d 416, 248 N.C. 52, 1958 N.C. LEXIS 333

• Court: Supreme Court of North Carolina
• Decided: March 19, 1958
• Status: Published

Opinion

Johnson, J.

Aside from court costs, the plaintiff City of Hender-sonville has no pecuniary interest in the outcome of this proceeding. The land which it purchased at the foreclosure sale has been sold and conveyed to McFadden and wife. If the title acquired by them should prove invalid, they have no recourse on the City. Wilmington v. Merrick, 234 N.C. 46, 65 S.E. 2d 373; Turpin v. Jackson County, 225 N.C. 389, 35 S.E. 2d 180. Accordingly, the McFaddens are now the real parties in interest. Yet they were neither pleaded into the case nor given notice of the proceeding -below.

In this state of the record the McFaddens would not be bound by the outcome of the instant proceeding, nor would the final adjudication of this phase of the proceeding affect title to the land as against the McFaddens. However, since the defendant’s single purpose and ultimate objective can be nothing short of recovery of the land from the McFaddens, we think they should be pleaded into the case and, with title to the land placed in issue, given an opportunity to .defend before the instant challenge to the foreclosure proceeding is finally adjudicated. The foreclosure proceeding, including service by publication, being regular on its face (Brown v. Doby, 242 N.C. 462, 87 S.E. 2d 921), the McFaddens may call to their aid defenses which are not available to the plaintiff City. Harrison v. Hargrove, 109 N.C. 346, 13 S.E. 939; S. c., 120 N.C. 96, 26 S.E. 936; Glisson v. Glisson, 153 N.C. 185, 69 S.E. ; Rawls v. Henries, 172 N.C. 216, 90 S.E. 140; Livestock Co. v. Atkinson, 189 N.C. 250, 126 S.E. 610; Graham v. Floyd, 214 N.C. 77, 83, 197 S.E. 873. See also Grady v. Parker, 228 N.C. 54, 44 S.E. 2d 449; Parker v. Trust Co., 235 N.C. 326, 69 S.E. 2d 841; Doyle v. Brown, 72 N.C. 393; McIntosh, North Carolina Practice and Procedure, Second Ed., Sec. 1715.

We have not overlooked the decisions in Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311, and Harrison v. Hargrove, supra (109 N.C. 346), wherein this Court did not challenge piecemeal procedure similar to that sought to be followed by the defendant in this case. However, in a case like this one we think the ends of justice require that the entire controversy, including the question of title to the land, should be adjudicated in a single trial or hearing. See Glisson v. Glisson, supra (153 N.C. 185). See also White v. White, 179 N.C. 592, 103 S.E. 216, wherein Clark, C. J., speaking for the Court in a case factually similar to the instant one, said, at bottom of page 601: “We think the present owner of the property, the Protestant Episcopal Church, as devisee of Mrs. White, should have been a party defendant.”

We intimate no opinion as to the merits of the ruling below. The judgment is vacated without prejudice to either side. The cause will be remanded for proceedings as herein directed. Let each party pay half the costs.

Remanded.