PACK et al.
v.
NEWMAN et al.
No. 164.
Supreme Court of North Carolina.
September 27, 1950.*92 M. R. McCown, Tryon, for plaintiffs, appellees.
J. Clyde Going, Landrum, S. C., for defendant, Clarence Newman, appellant.
ERVIN, Justice.
Under the agreement of the parties, the judgment awarding the sum in controversy to the plaintiffs can not be sustained on this appeal unless the deed from the plaintiffs to the defendant Clarence Newman vested in the latter "a marketable and indefeasible title" to the real property whereof Sarah C. Dailey died seized and possessed.
A "marketable title" is one free from reasonable doubt in law or fact as to its validity. Winkler v. Neilinger, 153 Fla. 288, 14 So.2d 403. An "indefeasible title" is a title which can not be defeated, set aside, or made void. In re Van Cott's Estate, 194 Misc. 984, 89 N.Y.S.2d 425.
The law presumes that every decedent leaves heirs or next of kin capable of inheriting his property. Warner v. Western North Carolina R. Co., 94 N.C. 250; University of North Carolina v. Harrison, 90 N.C. 385. This presumption has not been rebutted in the case at bar. Hence, it is to be assumed on the present record that Sarah C. Dailey was survived by heirs, who took title to her real property at her death. For these reasons, the parties correctly concede that the validity of the judgment in the present action hinges upon the question of whether or not the heirs of Sarah C. Dailey are precluded from asserting title to her realty by the judgment entered in the former actions at the January Term, 1950.
The complaint of the University of North Carolina in its action against W. Y. Wilkins, Jr., administrator of Sarah C. Dailey, and the unknown heirs of Sarah C. Dailey, set up one cause of action, and the complaint of Edith L. Stalker in her action against W. Y. Wilkins, Jr., administrator of Sarah C. Dailey, alleged a different cause of action. When the court consolidated the two independent actions for judgment at the instance of the University of North Carolina, Edith L. Stalker, and W. Y. Wilkins, Jr., administrator of Sarah C. Dailey, the actions did not become one action. They remained separate suits. Williams v. Carolina & W. R. R., 144 N.C. 498, 57 S.E. 216, 12 L.R.A., N.S., 191, 12 Ann.Cas. 1000.
The adjudication that Edith L. Stalker owned the real property left by Sarah C. Dailey was necessarily made in her suit against the administrator, for she was not a party to the other action in which the University was suing the administrator and the heirs of the decedent. This being true, the adjudication as to the state of the title is not binding upon the heirs of Sarah C. Dailey, for they were not parties to the action between Edith L. Stalker and the administrator, and were not brought into court in that action in any of the ways sanctioned by law. City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311; Casey v. Barker, 219 N.C. 465, 14 S.E.2d 429; Groce v. Groce, 214 N.C. 398, 199 S.E. 388.
In reaching this conclusion, we have not overlooked the argument of the plaintiffs that the adjudication made in the action between Edith L. Stalker and the administrator *93 binds the heirs of the decedent because that action was consolidated for judgment with the suit of the University against the administrator and the heirs in which the heirs were served with summons by publication. A similar contention was rightly rejected by the Supreme Court of Washington with these observations: "Neither this court nor any other court, so far as we are advised, has ever held that a judgment on a complaint, cross-complaint, or complaint in intervention setting up an independent cause of action may be rendered without service on any necessary party merely because the case in which it is filed was consolidated with an action by another party on a different cause of action, in which such service had been made. Such a holding would impinge the constitutional guaranty of due process of law." City Sash & Door Co. v. Bunn, 90 Wash. 669, 156 P. 854, 857, Ann.Cas.1918B, 31.
The court based the adjudication as to the title to the real property owned by Sarah C. Dailey at the time of her death upon the expressed consent of her administrator. Under the law, an administrator has no inherent interest in, title to, or control over the realty of his intestate. Speed v. Perry, 167 N.C. 122, 83 S.E. 176; Floyd v. Herring, 64 N.C. 409. This being so, the administrator of Sarah C. Dailey had no authority to consent to such adjudication, and such adjudication is a nullity.
The legal standing of the plaintiffs is not a whit bettered by an acceptance of the view that the adjudication as to the title to the land left by the decedent was made in the action brought by the University in which the heirs were served with summons by publication.
The judgment containing the adjudication is not a decree on the merits. It is simply a consent judgment embodying a compromise effected by the University, Edith L. Stalker, and the administrator without the assent of the heirs of Sarah C. Dailey. The judgment is, therefore, merely a contract between the University, Edith L. Stalker, and the administrator entered upon the records of the court with its approval. Lee v. Rhodes, 227 N.C. 240, 41 S.E.2d 747.
Since they were not parties to the contract and did not consent to the judgment, the heirs of Sarah C. Dailey are not bound by the judgment even if they were parties to the action in which it was entered. Town of Bath v. Norman, 226 N.C. 502, 39 S.E.2d 363; King v. King, 225 N.C. 639, 35 S.E.2d 893; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E.2d 901; Deitz v. Bolch, 209 N.C. 202, 183 S.E. 384.
For the reasons given, the deed from the plaintiffs to the defendant Clarence Newman did not vest in the latter "a marketable and indefeasible title" to the land owned by Sarah C. Dailey at the time of her death. The judgment to the contrary is
Reversed.