Willcox v. Di Capadarso

Per Curiam.

Defendants have filed in this Court a motion to dismiss plaintiffs’ action. Attached to said motion is a photostatic copy of a deed dated 10 September, 1956, filed for registration 18 September, 1956, and duly registered in the Moore County Registry, whereby the plaintiffs herein conveyed the lands allegedly owned by them when this action was commenced to Benson C. McWhite and Tobitha L. McWhite, in fee simple. In this deed, after the usual covenants of warranty, it is expressly provided: “The warranties contained in this Deed do not apply to nor cover alley or right-of-way adjoining the property herein conveyed on its southeast side.”

It is noted that, although plaintiffs alleged ownership in fee of the 2-foot strip embraced therein, plaintiffs’ allegations are to the effect that the entire twenty-seven feet constitute the alleged alley or roadway between the adjoining properties.

Thus, it appears affirmatively that plaintiffs do not now own the land described in the amended complaint or an easement in said 27-foot roadway; that they are not obligated by warranty in respect of said roadway; and that, since their said conveyance to the McWhites, they have had no legal interest either in said land or in said roadway. Even so, this does not work a discontinuance of plaintiffs’ right to prosecute this action to final judgment in respect to such damages, if any, as plaintiffs may have sustained by defendants’ alleged wrongful acts. Therefore, defendants’ motion in this Court to dismiss plaintiffs’ action is denied.

Defendants had no right of appeal from the order overruling their demurrer. Rule 4(a), Rules of Practice in the Supreme Court, 242 N.C. 766. Defendants’ exception thereto has been noted; and, if properly brought forward, will be considered by this Court in the event of an appeal by defendants from an adverse final judgment.

Defendants had the right to appeal from the order granting injunctive relief, both mandatory and prohibitory; but, since plaintiffs no longer have property rights affected by the injunction, such order of injunction, whether correct or incorrect when entered, must be vacated and the costs of this appeal taxed against plaintiffs.

In their brief, plaintiffs state that “The sale took place about a week after the injunction was issued,” and further that “the purchaser intends to be added as a party plaintiff in this case but has not done so.” Quaere: If the purchaser should desire to proceed, would the proper procedure be by independent action rather than as an additional party plaintiff herein? Suffice it to say, nothing herein bears upon the rights, if any, of the McWhites.

*744Upon certification of this opinion, and after answer filed by defendants, the case will stand for trial in so far as it relates to damages, if any, recoverable by plaintiffs on account of defendants’ alleged wrongful conduct.

The order of injunction is vacated and the cause remanded for further proceedings in accordance with this opinion.

Order of injunction vacated and cause remanded.

Johnson, J., not sitting.