{ "id": 2538735, "name": "ROY L. KIRKMAN and wife, LULA B. KIRKMAN; CLINTON (NMI) KIRKMAN and wife, ANN LYVONNE KIRKMAN; and JAMES E. KIRKMAN (Unmarried), Plaintiffs v. ADDIE WILSON (Widow); ZENO M. EVERETTE, JR. and wife, CAROL H. EVERETTE; ERNEST F. BOYD and wife, SYBIL E. BOYD; BRENDA H. MANNING; LOUIS EARL TOLER and wife, JOYCE D. TOLER; LINWOOD EARL BRAXTON and wife, EARLINE BRAXTON; ELVIRA JOHNSON (Widow); RICHARD D. JEWELL and wife, PATSY JOHNSON JEWELL; and MARIE H. WISE (Widow), Defendants and Third Party Plaintiffs v. J. L. WILSON and wife, ADDIE WILSON; CORA LEE BAILEY and husband, DENNIS BAILEY; JIMMY MORRIS and wife, JANICE MARLINE MORRIS; DORIS EVELYN SADLER and husband, CLEM M. SADLER; BRITT ANNIE WARREN and husband, JAMES W. WARREN; DORA LEE SUMRELL and husband, WILLIAM H. SUMRELL; STEPHEN KITE and wife, JULIA LAURA KITE; GUY C. FORNES and wife, LENA FRANCES FORNES; JAMES S. DIXON and wife, AMANDA DIXON; and CLAUDIS DIXON and wife, ADA MAE DIXON, Third Party Defendants", "name_abbreviation": "Kirkman v. Wilson", "decision_date": "1991-03-07", "docket_number": "No. 242A90", "first_page": "309", "last_page": "313", "citations": [ { "type": "official", "cite": "328 N.C. 309" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "390 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": -1 }, { "cite": "98 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523874 ], "year": 1990, "opinion_index": -1, "case_paths": [ "/nc-app/98/0242-01" ] }, { "cite": "161 S.E. 532", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "pin_cites": [ { "page": "533", "parenthetical": "Declaratory Judgment Act \"does not extend to the submission of a theoretical problem or a 'mere abstraction' \"" } ], "opinion_index": 0 }, { "cite": "201 N.C. 791", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628160 ], "year": 1931, "pin_cites": [ { "page": "792", "parenthetical": "Declaratory Judgment Act \"does not extend to the submission of a theoretical problem or a 'mere abstraction' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/201/0791-01" ] }, { "cite": "133 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "204", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "260 N.C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575436 ], "year": 1963, "pin_cites": [ { "page": "532", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0529-01" ] }, { "cite": "85 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "902" }, { "page": "904" } ], "opinion_index": 0 }, { "cite": "241 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613077 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "519" }, { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0515-01" ] }, { "cite": "390 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "700" }, { "page": "704" }, { "page": "704" }, { "page": "703-04" }, { "page": "700" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523874 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "245" }, { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0242-01" ] } ], "analysis": { "cardinality": 558, "char_count": 10424, "ocr_confidence": 0.769, "pagerank": { "raw": 2.509559444177768e-07, "percentile": 0.8103821883051869 }, "sha256": "c9351f1ef7b002d513a5b6e8cc9390a30e4315944448f0c67fbbb8587b993d20", "simhash": "1:08294ab66501cb7e", "word_count": 1737 }, "last_updated": "2023-07-14T22:58:40.693084+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROY L. KIRKMAN and wife, LULA B. KIRKMAN; CLINTON (NMI) KIRKMAN and wife, ANN LYVONNE KIRKMAN; and JAMES E. KIRKMAN (Unmarried), Plaintiffs v. ADDIE WILSON (Widow); ZENO M. EVERETTE, JR. and wife, CAROL H. EVERETTE; ERNEST F. BOYD and wife, SYBIL E. BOYD; BRENDA H. MANNING; LOUIS EARL TOLER and wife, JOYCE D. TOLER; LINWOOD EARL BRAXTON and wife, EARLINE BRAXTON; ELVIRA JOHNSON (Widow); RICHARD D. JEWELL and wife, PATSY JOHNSON JEWELL; and MARIE H. WISE (Widow), Defendants and Third Party Plaintiffs v. J. L. WILSON and wife, ADDIE WILSON; CORA LEE BAILEY and husband, DENNIS BAILEY; JIMMY MORRIS and wife, JANICE MARLINE MORRIS; DORIS EVELYN SADLER and husband, CLEM M. SADLER; BRITT ANNIE WARREN and husband, JAMES W. WARREN; DORA LEE SUMRELL and husband, WILLIAM H. SUMRELL; STEPHEN KITE and wife, JULIA LAURA KITE; GUY C. FORNES and wife, LENA FRANCES FORNES; JAMES S. DIXON and wife, AMANDA DIXON; and CLAUDIS DIXON and wife, ADA MAE DIXON, Third Party Defendants" ], "opinions": [ { "text": "WHICHARD, Justice.\nPlaintiffs brought this declaratory judgment action seeking to have themselves declared the fee simple owners of a tract of land and to have defendants ejected therefrom and plaintiffs placed in possession. All parties trace their alleged ownership to A. E. Kirkman, who had title to the land sometime prior to 22 August 1936. Kirkman died testate on 11 May 1941. He devised all his real estate to his son, G. C. Kirkman, \u201cto have and to use during his lifetime, with out [sic] the right or privilege to sell or convey the said relstate [sic] in any form or manner, and at [his] death . . . the aforesaid relstate [sic] shall be left to the legal children of . . . the aforesaid, G. C. Kirkman.\u201d\nWhile the original will filed in Folio Number 27 in the office of the Clerk of Superior Court, Craven County, contained the aforesaid restraint on alienation, the transcription recorded in Will Book K, page 27, did not. Instead, it erroneously stated that the property was devised \u201cwith the right or privilege to sell or convey the said real estate in any form or manner.\u201d\nPrior to histdeath in 1982, G. C. Kirkman and his wife conveyed in fee simple, by general warranty deeds, all the land in question. Defendants claim title by virtue of direct or mesne conveyances from G. C. Kirkman and wife. Plaintiffs, the sons of G. C. Kirkman who were living at the time of A. E. Kirkman\u2019s death, and their spouses, claim title as remaindermen under the will of A. E. Kirkman.\nThe trial court did not determine whether plaintiffs held vested remainder interests. It found as a fact that plaintiffs had not registered \u201cany claim or title they may have\u201d within the thirty-year period provided for in N.C.G.S. \u00a7 47B-4, the Marketable Title Act. (Emphasis added.) It concluded that \u201cany rights\u201d of plaintiffs in the land thus were extinguished by N.C.G.S. Chapter 47B. (Emphasis added.)\nOn appeal, the Court of Appeals noted that several issues of law and fact raised by the pleadings remained unresolved, and that the appeal thus was \u201cinterlocutory in nature.\u201d Kirkman v. Wilson, 98 N.C. App. 242, 245, 390 S.E.2d 698, 700 (1990). It nevertheless \u201ctreat[ed] plaintiffs\u2019 appeal as a petition for certiorari\u201d and elected to consider it. Id.\nThe majority in the Court of Appeals held that:\nAs to the claims of defendants Elvira Johnson; Richard Jewell and wife, Patsy Jewell; Marie H. Wise; Addie Wilson; and Zeno Everette and wife, Carol Everette; plaintiffs prevail because plaintiffs\u2019 interest was not extinguished by the Act because it was revealed in the muniments of title in their record chain of title. With respect to defendants Ernest Boyd and wife, Sybil Boyd; Louis Toler and wife, Joyce Toler; Brenda H. Manning; and Linwood Braxton and wife, Earline Braxton; because no registration of their interests by plaintiffs occurred pursuant to G.S. 47B-4 and no mention of the Kirkman will appeared in the muniments of title in their respective 30 year chain of record title, plaintiffs\u2019 interest was extinguished by the Act and these defendants prevail.\nId. at 252, 390 S.E.2d at 704. The court thus affirmed the trial court in part and reversed it in part. Judge Greene dissented in part on the ground that, in his view, the General Assembly did not intend in the enactment of the Marketable Title Act to eliminate any vested remainder interests. Id. at 252-53, 390 S.E.2d at 704. The Court of Appeals declined to rule on plaintiffs\u2019 challenge to the constitutionality of the Marketable Title Act because it had not been raised or considered in the trial court. Id. at 251-52, 390 S.E.2d at 703-04.\nPlaintiffs exercised their right to appeal based on Judge Greene\u2019s dissent. N.C.G.S. \u00a7 7A-30(2) (1989). On 29 August 1990 we allowed plaintiffs\u2019 petition for discretionary review on the issue of \u201c[w]hether application of the Marketable Title Act to extinguish a non-possessory vested remainder violates the Due Process Clause of the United States Constitution or the Law of the Land provision of the North Carolina Constitution.\u201d We also allowed a petition for discretionary review filed by defendants Zena M. Everette, Jr. and wife Carol H. Everette, on the issue of whether the \u201cMarketable Title Act extinguished] plaintiffs\u2019 vested remainder interest\u201d in the property to which the Everettes hold a record title by mesne conveyances from G. C. Kirkman.\nWe hold that the Court of Appeals erred in treating plaintiffs\u2019 interlocutory appeal as a petition for certiorari and considering the appeal. As the Court of Appeals noted, \u201c[t]here still remain several unresolved issues of law and fact that were raised by the pleadings.\u201d Kirkman, 98 N.C. App. at 245, 390 S.E.2d at 700. Moreover, the proceedings in the trial court have not established the essential factual and legal foundation for the issues the parties seek to have decided in this appeal. The trial court did not determine whether plaintiffs have interests in the lands in question which give them standing to litigate the effect of the Marketable Title Act thereon. Instead, it purported to declare extinguished \u201cany claim or title\u201d or \u201c[a]ny rights\u201d plaintiffs \u201cmay have.\u201d A decision on such a record would constitute an advisory opinion on abstract questions, and this \u201ccourt will not give advisory opinions or decide abstract questions.\u201d Boswell v. Boswell, 241 N.C. 515, 519, 85 S.E.2d 899, 902 (1955); see also Henderson v. Vance County, 260 N.C. 529, 532, 133 S.E.2d 201, 204 (1963) (per curiam); Poore v. Poore, 201 N.C. 791, 792, 161 S.E. 532, 533 (1931) (Declaratory Judgment Act \u201cdoes not extend to the submission of a theoretical problem or a \u2018mere abstraction\u2019 \u201d). \u201cThe function of appellate courts ... is not to give opinions on merely abstract or theoretical matters, but only to decide actual controversies injuriously affecting the rights of some party to the litigation, and . . . questions or cases which [are] . . . academic are not a proper subject of review.\u201d 5 Am. Jur. 2d Appeal and Error \u00a7 761 (1962).\nAccordingly, the opinion of the Court of Appeals is vacated, and the case is remanded to that court for further remand to the Superior Court, Craven County, where the parties may take such action as they deem advisable \u201cso that the controverted and determinative facts may be established and rulings as to the law made in relation thereto.\u201d Boswell v. Boswell, 241 N.C. at 521, 85 S.E.2d at 904.\nVacated and remanded.", "type": "majority", "author": "WHICHARD, Justice." }, { "text": "Justice Frye\ndissenting.\nI dissent from the majority\u2019s holding \u201cthat the Court of Appeals erred in treating plaintiffs\u2019 interlocutory appeal as a petition for certiorari and considering the appeal.\u201d\nAfter making detailed findings of fact, the trial judge concluded as follows: \u201cAny rights of the plaintiffs in the lands owned by A. E. Kirkman at the time of his death, as vested remaindermen under the Will of A. E. Kirkman, have been extinguished by Chapter 47B of the General Statutes of North Carolina (Real Property Marketable Title Act).\u201d Judge Winberry then \u201cORDERED, ADJUDGED AND Decreed that the plaintiffs have and recover nothing of these defendants, that the Notice of Lis Pendens heretofore filed in this action be stricken from the record and the costs of this action be Taxed to the plaintiffs.\u201d From this judgment plaintiffs appealed to the Court of Appeals. The Court of Appeals affirmed in part and reversed in part, with Judge Greene dissenting on the question of whether the Marketable Title Act was intended to eliminate vested remainders.\nThe majority concludes that a decision on this record would constitute an advisory opinion on abstract questions. As I read the trial court\u2019s judgment, it resolves the primary question before the court, which is, whether the Marketable Title Act deprived plaintiffs of any claim to the property at issue. The order is neither advisory nor abstract but clearly provides that plaintiffs \u201chave and recover nothing of these defendants\u201d and orders that the notice of lis pendens be stricken from the record. I believe that the issues are ripe for decision. Sending the case back for the parties to start all over again is not in the interest of judicial economy.", "type": "dissent", "author": "Justice Frye" } ], "attorneys": [ "Ward and Smith, P.A., by Susan K. Ellis and J. Randall Hiner, for plaintiffs.", "LeBoeuf Lamb, Leiby & MacRae, by Jane Flowers Finch and Thomas W. Boyd, for defendants." ], "corrections": "", "head_matter": "ROY L. KIRKMAN and wife, LULA B. KIRKMAN; CLINTON (NMI) KIRKMAN and wife, ANN LYVONNE KIRKMAN; and JAMES E. KIRKMAN (Unmarried), Plaintiffs v. ADDIE WILSON (Widow); ZENO M. EVERETTE, JR. and wife, CAROL H. EVERETTE; ERNEST F. BOYD and wife, SYBIL E. BOYD; BRENDA H. MANNING; LOUIS EARL TOLER and wife, JOYCE D. TOLER; LINWOOD EARL BRAXTON and wife, EARLINE BRAXTON; ELVIRA JOHNSON (Widow); RICHARD D. JEWELL and wife, PATSY JOHNSON JEWELL; and MARIE H. WISE (Widow), Defendants and Third Party Plaintiffs v. J. L. WILSON and wife, ADDIE WILSON; CORA LEE BAILEY and husband, DENNIS BAILEY; JIMMY MORRIS and wife, JANICE MARLINE MORRIS; DORIS EVELYN SADLER and husband, CLEM M. SADLER; BRITT ANNIE WARREN and husband, JAMES W. WARREN; DORA LEE SUMRELL and husband, WILLIAM H. SUMRELL; STEPHEN KITE and wife, JULIA LAURA KITE; GUY C. FORNES and wife, LENA FRANCES FORNES; JAMES S. DIXON and wife, AMANDA DIXON; and CLAUDIS DIXON and wife, ADA MAE DIXON, Third Party Defendants\nNo. 242A90\n(Filed 7 March 1991)\nAppeal and Error \u00a7 167 (NCI4th)\u2014 action to determine title to real estate \u2014 advisory opinion\nThe Court of Appeals erred by treating plaintiffs\u2019 appeal as a petition for certiorari in an action to determine title to real estate where there were several unresolved issues of law and fact, and the proceedings in the trial court did not establish the essential factual and legal foundation for the issues the parties sought to have decided on appeal. A decision on this record would constitute an advisory opinion on abstract questions.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 760-763.\n[\nJustice FRYE dissenting.\nAPPEAL by plaintiffs pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 98 N.C. App. 242, 390 S.E.2d 698 (1990), which affirmed in part and reversed in part a judgment entered on 23 November 1988 by Winberry, J., in Superior Court, CRAVEN County. On 29 August 1990 this Court allowed petitions for discretionary review of additional issues filed by plaintiffs and by defendants Zeno M. Everette, Jr., and wife Carol H. Everette. Heard in the Supreme Court 15 February 1991.\nWard and Smith, P.A., by Susan K. Ellis and J. Randall Hiner, for plaintiffs.\nLeBoeuf Lamb, Leiby & MacRae, by Jane Flowers Finch and Thomas W. Boyd, for defendants." }, "file_name": "0309-01", "first_page_order": 343, "last_page_order": 347 }