Rumbo v. Gay Manufacturing Co.

39 S.E. 581, 129 N.C. 9, 1901 N.C. LEXIS 3

Opinion

ClaRK, J.

Tbe complaint alleges ownership and possession of a tract of land; that defendant claims, without legal right, an interest in tbe timber standing thereon by virtue of an alleged contract, and asks the judgment of tbe Court that such contract be declared null and void. Tbe defendant answers, admitting the complaint, except tbe allegations as to tbe contract, which, it asserts, is valid, and asks judgment declaring it a valid lien upon tbe timber interest in said land. Tbe Court below adjudged that tbe defendant was not entitled to tbe relief it demanded, and then dismissed tbe action. Both parties appealed.

As the defendant did not prosecute tbe appeal, that part of tbe case is determined. Besides, it was justified by Manufacturing Co. v. Hobbs, 128 N. C., 46, which held an exactly similar contract given tbis same defendant invalid. It seeks, however, to justify the dismissal of the action on the ground that its claim having been adjudged invalid, there was no cloud to' remove and no equity could be invoked. If the claim had been valid, the Court could not remove it. It is only when there is an invalid claim that a decree removing the cloud can be made. The Court below should not have dismissed the action, but should have entered its decree adjudging the defendant’s contract invalid as a lien on the timber.

The defendant strenuously argued the equitable doctrines formerly applicable, but we need not discuss their application here, for this is not an equitable proceeding. It is an action given by statute. Laws 1893, Chap. 6. It was because the General Assembly thought the equitable doctrines (as laid down in Busbee v. Macey, 85 N. C., 329, and Busbee v. Lewis, Ibid, 332, and like cases) inconvenient or unjust that the above Act of 1893 was passed. If defendant had, as permitted under section 2 of said Act, disclaimed any interest in the property, judgment could not have gone against him for costs. Rut having asserted his claim and lost, he can not now plead the invalidity of his own claim as ground to dismiss the action.

Error.