Mattie S. WALL et al.
v.
Maddie SNEED, Executrix of the Estate of Zollie Sneed, Deceased, et al.
No. 7220SC49.
Court of Appeals of North Carolina.
March 29, 1972.*456 Pittman, Pittman & Pittman by William G. Pittman, Rockingham, for plaintiff appellants.
Page & Page by John T. Page, Jr., Rockingham, for defendant appellees.
HEDRICK, Judge.
In N. C. Monroe Construction Co. v. Guilford County Board of Education, 278 N.C. 633, 180 S.E.2d 818 (1971), Justice Lake quoted from the opinion of Justice Johnson in Morganton v. Hutton & Bourbonnais Company, 247 N.C. 666, 101 S.E.2d 679 (1958), as follows:
"`Whenever, as here, a fatal defect of parties is disclosed, the Court should refuse to deal with the merits of the case until the absent parties are brought into the action, and in the absence of a proper motion by a competent person, the defect should be corrected by ex mero motu ruling of the Court.' See also: Edmondson v. Henderson, 246 N.C. 634, 99 S.E.2d *457 869; Peel v. Moore, 244 N.C. 512, 94 S.E.2d 491."
The record before us discloses that, in addition to the plaintiffs, five of Martha Jane Sneed's children, William Henry Sneed, Lillie S. Watkins, Bertha S. Barnes, Laura S. Covington and Calvin Sneed (now deceased, and survived by his widow, Flossie Sneed Melton, and his two children) did not receive any of their mother's property described in the complaint. The pleadings not only show that a controversy exists between the plaintiffs and the defendants as to whether Martha Jane Sneed conveyed the subject property to Zollie Sneed in trust for all of the children who had not received a share of the property, but they reveal that a controversy exists between the plaintiffs and the defendants as to whether Zollie Sneed actually purchased and paid for the interest of Watkins, Barnes, Covington and Calvin Sneed in and to the property. To further cloud the title to at least a portion of the property, it developed at the trial that Watkins, Barnes, Covington and the widow of Calvin Sneed, and others, had apparently, by a deed containing no warranties, dated 5 April 1971, conveyed all their right, title and interest to the subject property to Wenonia Ann Wall, a daughter of one of the plaintiffs. None of these four children, nor the widow or children of Calvin Sneed, nor Wenonia Ann Wall are joined as parties to this proceeding.
Rule 19(a) and (b) of the Rules of Civil Procedure provides:
"(a) Necessary joinder.Subject to the provisions of Rule 23, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of anyone should have been joined as plaintiff cannot be obtained he may be made a defendant, the reason therefor being stated in the complaint. . . .
(b) Joinder of parties not united in interest.The court may determine any claim before it when it can do so without prejudice to the rights of any party or to the rights of others not before the court; but when a complete determination of such claim cannot be made without the presence of other parties, the court shall order such other parties summoned to appear in the action."
"A person is a necessary party to an action when he is so vitally interested in the controversy involved in the action that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence as a party." Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843 (1952). His interest must be such that no decree can be rendered which will not affect him. Gaither Corp v. Skinner, 238 N.C. 254, 77 S.E.2d 659 (1953). "The term `necessary parties' embraces all persons who have or claim material interests in the subject matter of a controversy, which interests will be directly affected by an adjudication of the controversy. [Citation omitted.] A sound criterion for deciding whether particular persons must be joined in litigation between others appears in this definition: Necessary parties are those persons who have rights which must be ascertained and settled before the rights of the parties to the suit can be determined." Equitable Life Assurance Society of United States v. Basnight, 234 N.C. 347, 67 S.E.2d 390 (1951).
We hold that on this record it appears that Lillie Watkins, Bertha Barnes, Laura Covington, Flossie Sneed Melton, and her two children, widow and children of Calvin Sneed, and Wenonia Ann Wall have rights in the subject matter of this controversy which must be ascertained and settled before the rights of the present plaintiffs and defendants can be completely and finally adjudicated and determined.
With respect to William Henry Sneed, nothing appears in the pleadings raising any issue as to whether he sold any interest in the subject property to Zollie Sneed, nor did he join in the execution of the quitclaim deed dated 5 April 1971 to Wenonia Ann Wall. Although the court might properly proceed to adjudicate the diverse claims *458 and interests of all the other parties without his joinder, it would appear desirable that he be made a party to the end that the title to the subject property might be adjudicated in one suit. Wells v. Dickens, 274 N.C. 203, 162 S.E.2d 552 (1968); Allred v. Smith, 135 N.C. 443, 47 S.E. 597 (1904).
We have not overlooked or ignored the assignments of error relating to the application of G.S. § 8-51, the "Dead Man's Statute." We cannot anticipate what circumstances may develop after the addition of new parties.
Without expressing any opinion as to the merits of the claims of any of the parties, joined or to be joined, the judgment entered is vacated and the case is remanded for such proceedings as the law directs and the rights of the parties require.
Vacated and remanded.
BROCK and VAUGHN, JJ., concur in the result.