(dissenting): The.statute (Code, Sec. 567) was enacted in order (said Pearson, C. J., in McKethan v. Ray, 71 N. C., 165) “to dispense with the formality of summons, complaint and answer.” It would manifestly lead to absurdity to hold that the “controversy without action” was intended to include any other than a legal controversy, if the statute did not relieve us of discussing the general principle by declaring in plain terms that it must *327be between “ parties to a question in difference, which might be the subject of a civil action.” It follows necessarily that before the Court can consider such a proceeding it must be satisfied from the statement that a cause of action exists and this can only appear when from the sworn statement, however informally or inartistically drawn, the Court can gather facts sufficient to constitute “the subject of a civil action.” Hence it has been held that where the ‘^case containing the facts” does not show that the Court has jurisdiction, the proposed controversy must be dismissed. Little v. Thorne, 93 N. C., 69. Following numberless precedents, beginning with Tucker v. Baker, 86 N. C., 1, this Court has held during the present term in the case of Webb v. Hicks, Justice Eurohes delivering the opinion of the Court, that where facts cannot be gathered from the whole complaint that would, if true, entitle a plaintiff to recover, the action must be dismissed. Lassiter v. Roper, 114 N. C., 17. In the case at bar, it is set forth in the sworn statement that Hiram Jones, one of the parties, borrowed one hundred dollars from another party, W. T. Carrington, on the 23d of March, 1895.
The mortgage, with the probate and certificate of registration is set forth in full, and then follows the portion of the affidavit upon which the status of the case in Court depends, which is as follows :
“That at the time of and before the execution of said mortgage, said Hiram Jones was indebted, by note, to G-. C. Earthing, above named, in the sum of One Hundred Dollars, and said Farthing contends that said mortgage is void, for the reason that at the date of its execution he was a creditor of said Jones, as above stated. "Whereas, said W. T. Carrington and Hiram Jones contend that neither the letter nor the spirit of the new anti-preference law embraces a case of this kind, in which one person, however much *328indebted at the time, creates a new debt and seeks to secure the same by mortgage, trust-deed or other security. And so desiring to save costs and trouble they ask the decision of the Court upon the state of facts.
W. T. CarringtoN,
ITiram Jones,
G. C. Earthing.
“W. T. Carrington and G. C. Earthing, being duly sworn, state that tiiis controversy is real, and the proceedings in good faith, to determine the rights of the parties.
W. T. Carrington.
“Sworn to and subscribed before me this April 1,1895.
“"Witness my hand and notarial seal.
Chas. K. Eaucette,
Notary Public.”
The Act of March 13th, 1895, provides that “All conditional sales, mortgages or deeds in trust, which are executed to secure any debt, obligation, note or bond which gives preference to any creditor of the maker, shall be absolutely void as to existing or editors.'1'1 The Statute of 13th Elizabeth {Code, Sec. 1545) declared all conveyances executed “to delay, hinder and defraud creditors and others of their just and lawful actions, etc., (only as to that person, his heirs, etc.) to be utterly void and of no effect.” Before the enactment of that statute it was necessary to invoke the aid of a court of equity to have a deed declared void for fraud, and, where by that or any other statute deeds are pronounced void as against creditors, in order to secure a formal declaration of their invalidity the moving party must ask relief that would have been administered formerly solely in a court of equity.
*329It does not appear tbat the creditor Earthing has sued upon the note due him, or that, if he had obtained judgment and issued execution thereon, he could not have realized his debt by the sale of other property. Unless the creditor has the right, upon the state of facts presented, to demand a formal declaration of the Court that the mortgage is void, no cause of action is stated, upon which he can demand any judgment whatever. Southerland v. Harper, 83 N. C., 200. Farthing .has shown no shadow of a claim to either the specific personal property or the land covered by the mortgage to Carrington, and there is not the slightest ground, therefore, for invoking the aid of the Court to remove a cloud from property to which he has shown no apparent right, or title. Browning v. Lavender, 104 N. C., 69: Peacock v. Stott, Ibid, 154. “A cause of action is generally held to be a union of the right of the plaintiff and its infringement by the defendant.” 1 Enc. of PI. & Pr., p. 116. The two elements are the right of the plaintiff and omission of duty or wrong on the part of the defendant. Hayes v. Clinkscales, 9 S. C., 441. Here, the only right shown to - be in Farthing, in whose favor an attempt is made to state a cause of action if any exists, is that to sue for and recover the sum of one hundred dollars due him, but there, is an utter failure to indicate how the mortgage, without further explanation, interferes with that right. There must be an allegation of a breach or of a neglect of duty and a damage resulting, in order to properly constitute the suit in Court. Cooley, J., in Post v. Campam, 42 Mich., 96. “The Codes of Civil Procedure create no new causes of action. Rights are entirely independent of remedies. Whatever was a cause of 'action at law or a ground of relief in equity before Codes, is now remediable in a civil action, and whatever was remediless *330before is now remediless under the Codes. 1 Enc. of PI. & Pr., p. 145.”
There must be some limit to the exercise of jurisdiction under section 567. It is well settled that a respectful letter from the learned members of the bar, who represent the parties to this proceeding, asking the Court to advise them as to some controversy that had not, but might in the near future arise, would give the subject matter of the communication'no standing in the Superior Court or by appeal here.
I am at a loss to know how the line can be drawn so as to guide the legal profession and protect the Courts against being forced to spend their time in deciding speculative questions between the rule that the statement of facts sufficient to constitute a cause of action shall be regarded as an essential prerequisite to the consideration of a controversy submitted without action, and the loose practice of allowing affidavits suggesting that a question of vital interest to the public is about to arise, and requesting the Court to relieve the parties of the trouble and expense of proceeding in the prescribed way, and to give it a proper status-in Court. I cannot concur with my brethren in the view that the letter of advice to the head of a co-ordinate brauch of the Government (114 N. C., 925) is a precedent for entertaining and deciding this case. There, the Court followed a former precedent in advising a co-ordinate department (the Legislature) about a matter that confronted it at the moment, and involved a grave Consitu-tional question upon which that department was called upon to act immediately. There, the Court gave advice in order to point out the line of duty which was prescribed by the Constitution, and it was not necessary to render a jugdment. Here, we must either render a judgment or dismiss the case for want of jurisdiction; there is no *331middle ground. If we have no jurisdiction, as the modified opinion of the Court seems to concede, then our judgment is a nullity. It is familiar learning that a judgment,, where the Court has no jurisdiction, is not conclusive. It seems to me that, where it is conceded that a case is cor am, non jxidice, the Court can render no judgment, and it is manifestly our duty to dismiss, unless we mean to hold that any two private citizens have the same right to ask for advice about their differences that the Legislature or the Governor has to invoke our aid in acting upon a grave Constitutional question upon which immediate action is inevitable. To this proposition I cannot give my assent, and in my view of the case I cannot concur with my brethren without assenting to it.
The letter to the Governor which is referred to was not an adjudication as to the rights of the Judicial officers whose terms were in question. But, feeling that they would voluntarily accept the advice as decisive, the Court simply endeavored to exhibit a proper appreciation of the rights of the Judges and at the same time to show courtesy to the Chief Executive of the State that had been considered due both departments when similar requests had been theretofore made. It has never been once suggested that the frequent designation of actions for possession, since feigned actions and forms of action were abolished in 1868, as in the nature of actions of ejectment, warrants this Court in entertaining a suit begun by declaration instead of by summons, and thus disregarding the requirement of the statute (Code, Sec. 161); I see no more reason for attaching greater significance to the expression u in the nature of a controversy without action.” I cannot concur in the view that statutes, enacted in derogation of general law and heretofore construed strictly by this Court, shall be deemed modified as a mere inference from the use of such illustrations. But the *332judgment of the court below that Jones’ mortgage is not void is, as I understand the opinion of the court, left undisturbed, and is allowed to conclude the parties, though the •court had no jurisdiction to try it.
"Whatever may be the magnitude of the question involved, I deem it my duty to refrain from the expression of an opinion upon it, just as it would be proper to decline to respond to a written request accompanied by a solemn affidavit and ■sent in an informal way by some other highly respectable ■citizens of the State. I therefore dissent from the opinion ■of a majority of the Court that there is a properly constituted case before us.
If the majority of the Court had ordered that the appeal be dismissed for want of jurisdiction, thus vacating the judgment below which will now remain conclusive on the parties, the question whether I should give expression to my opinion on the merits might have been considered, .according to the precedents, one of propriety. But where the Court, as the conclusion deduced from an argument to ■sustain the jurisdiction, simply ordered that the appellant pay the costs, then with great deference to the views of ■others, it seems to me that my course should be dictated by a sense of duty rather than of propriety. When the letter of advice, referred to in the opinion of the Court, was sent to the Governor, it must be remembered that there was no judgment appealed from, the validity of which depended upon the opinion of the Court, and the letter concluded no one as to his lights. It subserved the purpose of pointing out to the Executive Department the method of conducting the approaching election, a matter upon which that department was required by law to talce action forthwith.