#### WILLIAM J. WAGONER v. B. B. SAINTSING.

(Filed 8 November, 1922.)

Appeal and Error — Case Agreed — Parties—Consent—Procedure.

Where all of the proper or necessary parties having an interest in the lands sought to be conveyed by a deed, the sufficiency of which is attacked in a case agreed, are not parties to the action or the agreement, but the Superior Court judge has rendered judgment, from which an appeal has been taken, the case on appeal may be retained in the Supreme Court for a reasonable time, or remanded, as the parties may elect, to afford those who have not consented an opportunity to consent to the facts as at present presented, or to change or modify them as they may all agree, or take such steps for the complete determination of the case as may be in accordance with the law and the course and practice of the court.

Appeal by defendant from Harding, J., at July Term, 1922, of DAVIDSON.

Bdper & Baper for plaintiff.

J. B. McCrary for defendant.

Walkeb, J.

This is a controversy without action, submitted to the Superior Court upon facts to which the parties have agreed. It comes here for the purpose of determining whether the plaintiff can make a good and indefeasible title to the defendant for the land described in the submission, and this involves a construction of the will of Jacob Wagoner, deceased. Rut the living daughters of Jacob Wagoner, and the heirs of such as have died, are necessary, or, at least, proper parties to the controversy in order to a complete determination of the question raised.

The matter as now presented is not substantially unlike that upon which the ease of Brinson v. McCotter, 181 N. C., 482, was decided, and in which this Court ordered certain parties to be brought in. That was a case stated on agreed facts, and the order of this Court was as follows: “This is an action to settle the title to a tract of land, submitted upon an agreed statement of facts, and it appearing that there cannot be a complete determination of the rights of the parties in the absence of the heirs of Ellis H. Pickles, it is ordered that the cause be remanded to the Superior Court in order that the said heirs be made parties to this action with the right to plead.”

We do not pursue that course entirely nor do we'compel the persons we have designated as proper or necessary parties to be brought in against their-will (in irmitum), but merely afford them the opportunity of coming in by consent and joining in the submission of the controversy upon the facts as they are now stated, or if the parties and inter*363ested persons are so advised and agree, upon a new state of facts, or sucb facts additional to those already agreed upon, as may meet with tbe consent of tbe parties, tbe case may be submitted to tbe judge again, if found to be necessary, and tbe parties so agree, for bis decision, or sucb other and further proceedings may be bad as may be in accordance with tbe law and tbe course and practice of tbe court.

Upon a somewhat similar question, tbe Court said, in Waters v. Boyd, 179 N. C., 180-181: “Whether tbe fee passed out of tbe grantor to Nancy E. Waters at. all depends upon tbe exact wording of tbe deed, and whether, if she took only a life estate (which is nowhere alleged), tbe language in tbe warranty can be construed as a conveyance of tbe remainder to tbe two children are matters which cannot be adjudicated unless tbe deed was before tbe court nor, in the absence, as parties to this action, of tbe heirs of tbe grantor in tbe deed to her. There is sucb a defect of parties and of allegations, and in tbe affidavit of submission, that tbe judgment in any aspect is erroneous, and must be set aside. Being a consent proceedings, tbe court could not have directed additional parties or statement of facts to be made in invitum to cure tbe defect. On tbe record, this is simply a moot question on which tbe opinion of tbe Court is asked, but on sucb it will not render its decision,” citing Bates v. Lilly, 65 N. C., 232; Millikan v. Fox, 84 N. C., 107.

Tbe case will be remanded, but if it is so agreed, and is found to be feasible, tbe new parties may be added and tbe necessary amendments to tbe case may be made in this Court, and for this purpose tbe case may be retained here for a reasonable time, or remanded, as tbe parties may elect.

Eemanded.