Action to remove a cloud from title to about one acre of land in possession or claimed by plaintiff. On adverse intimation of the court as to plaintiff's right to maintain the action, plaintiff submitted to a nonsuit and appealed.
The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE HOKE. As we understand the record, this is an action to remove a cloud from the title to an acre of land, held and claimed by plaintiff for school purposes, and arising by reason of an adverse claim made to said land by the individual defendants, B. M. Orr et al. During the progress of the trial it appeared that plaintiff board had prepared a deed for the land in controversy to the defendant the Union Development Company and deposited the same as an escrow with Mr. George B. Walker, to be delivered when said company had executed a deed to plaintiff for one acre of the company's land for school purposes, to be selected by (164) the school board, and that this site had not been selected nor the deed therefor made by the company at the time of trial. Upon these facts, we think that the action should have been allowed to proceed. It is very generally held that in case of an escrow until condition performed, the title remains in the grantor, and the ordinary actions for the protection of the property and preservation of the title may be brought by him. Calhoun v. Emigrant Co., 93 U.S. 124; Fuller v. Hollis, 57 Ala. 435;Ins. Co. v. Nolin, 56 S.W. 198 (Tex.Civ.App.); 3 Washburne on Real Property (5 Ed.), p. 321; Hopkins on Real Property, p. 135; 16 Cyc., p. 578.
Arrington v. Arrington, 114 N.C. 116, does not antagonize the principle, and Craddock v. Barnes, 142 N.C. 89, is in direct recognition of it. Thus, in page 97, Associate Justice Walker, delivering the opinion, says: "It is therefore the performance of the condition and not the second delivery that gives it vitality as a deed sufficient to pass the title," etc.
Apart from this, an action of this character is in the nature of an equitable proceeding, the scope of the relief having been somewhat *Page 133 enlarged and extended by the provisions of our statute, Revisal, sec. 1589. 6 Pomeroy Eq. Jurisprudence, sec. 724 et seq. And even in case of conditions performed pending suit, the grantor and grantee and adverse claimants being all before the court, there seems to be no reason, if the parties so desire, why the trial of the cause should not be proceeded with.
There was error in the ruling of the court, and this will be certified, that the order of nonsuit be set aside and the issues raised properly determined.
Error.
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