#### CONSOLIDATED REALTY CORPORATION v. E. S. KOON.

(Filed 11 October, 1939.)

1. Controversy Without Action § 2—

In the submission of a controversy without action the statement of facts agreed should include only pertinent facts upon which the parties are in agreement, and evidence from which other facts may be found has no place therein, and since the procedure is statutory, compliance with the provisions of the statute is necessary and the statute must be strictly construed, C. S., 626.

2. Controversy Without Action § 4—

In hearing a case submitted under a statement of facts agreed, the court is restricted to the facts therein presented and it may not hear evidence and find additional facts, although if the facts agreed are insufficient the court has discretionary power to permit amendments concurred in by the parties.

3. Same—

Where persons having an interest in the subject matter of a controversy without action are not parties thereto, they may be afforded opportunity to come in by consent and join in the submission upon the facts agreed, or upon a new statement of facts, or upon additional facts agreed to by all the parties, in order that the entire controversy may be finally adjudicated, but additional parties cannot be compelled to come in against their will.

Appeal by defendant from *Pless, J.,*in Chambers in Asheville, 16 June, 1939, of BuNCOmbe.

This is a controversy without action under O. S., 626.

*296Tbe case was bere on former appeal and remanded to tbe end tbat tbe court below make disposition of tbe case • in accordance witb tbe opinion then rendered. 215 N. C., 459.

Tbe record as constituted on tbis appeal contains affidavits of parties, statement of facts supported by exhibits, affidavits and admissions of counsel, *findings of fact by the judge,*and judgment. Tbe ease comes bere for tbe purpose of determining whether tbe plaintiff can “make a valid fee simple title” to tbe defendant for tbe land in controversy.

In tbe statement of agreed facts it is stipulated: “Tbat tbe court shall find tbe facts from tbe agreed statement of facts and tbe exhibits thereto attached, and such other evidence as is beard by tbe court, and tbat tbe findings of fact by tbe court shall be binding on all parties hereto.”

It further appears tbat tbe case was reheard by tbe judge below upon “tbe agreed statement of facts, exhibits, and affidavits thereto attached, and admissions of counsel,” from which tbe court finds facts touching tbe whole controversy, in part as set forth in tbe statement of agreed facts, and in part from evidence before it. It also appears tbat from facts found from evidence before it tbe court concludes that certain named persons, who are not parties to tbe action, are estopped to challenge the validity of a deed in controversy.

Upon tbe findings of fact tbe court, being of opinion that tbe plaintiff is tbe owner in fee of tbe land in controversy, and can convey such title to tbe defendant, rendered judgment for specific performance of tbe contract of sale and purchase between tbe parties.

Defendant appeals to tbe Supreme Court and assigns error.

*Daniel M. Hodges for plaintiff, appellee.*

*Reed Kitchin for defendant, appellant.*

Winborne, J.

Upon tbis record tbe judgment below cannot be sustained.

Tbe statute, C. S., 626, provides that: “Tbe parties to tbe question in difference which might be tbe subject of civil action may, without action, agree upon a case containing tbe facts upon which the controversy depends, and present a submission of tbe same to any court which would have jurisdiction if an action bad been brought.” It further provides that: “The judge shall bear and determine *the case,*and render judgment *thereon*as if an action were pending.”

Tbe purpose of tbe statute is to dispense witb the formalities of a summons, complaint and answer, and to permit the case to be submitted to *the*court on statement of agreed facts. *McKethan v. Ray,*71 N. C., 165.

*297Tbe statute must be strictly construed. *Waters v. Boyd,*179 N. C., 180, 102 S. E., 196. And, in submitting a case under it, tbe procedure, being statutory, must be complied witb to render tbe judgment valid. McIntosh P. *&*P., 556. Only facts pertinent to tbe controversy and witb respect to wbicb tbe parties are in agreement bave a place in tbe case. Evidence from wbicb other facts may be found bas no place there.

Tbe case is to be beard only upon tbe facts presented and tbe court cannot go outside of tbe statement of facts. McIntosh P. & P., 556. *McKethan v. Ray, supra; Overman v. Sims,*96 N. C., 451, 2 S. E., 372; *Waters v. Boyd, supra; Wagoner v. Saintsing,*184 N. C., 362, 114 S. E., 313; *Realty Corp. v. Koon,*215 N. C., 459, 2 S. E. (2d), 360.

However, as stated by *Barnhill, J.,*in the opinion on the former appeal in this case, “if the facts are insufficient to support a judgment the court bas the discretionary power to permit amendments thereto wbicb are concurred in by the parties.”

All persons having an interest in the controversy must be parties, to the end that they may be concluded by the judgment, and the controversy be finally adjudicated as in the case of a.n action instituted in the usual way. *McKethan v. Ray, supra.*But, being a consent proceeding, additional parties cannot be compelled to come in against their will. *Waters v. Boyd, supra; Wagoner v. Saintsing, supra.*

In the latter case *Walker, J.,*said: “Nor do we compel the persons we bave designated as proper or necessary parties to be brought in against their will *(in*invitum), 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 interested persons are so advised and agree, upon a new state of facts, or such facts additional to those already agreed upon, as may meet witb the consent of the parties, the case may be submitted to the judge again, if found to be necessary, and the parties so agree, for bis decision, or such other and further proceedings may be bad as may be in accordance witb the law and the course and practice of the court.”

In accordance witb these principles, tbe court below is without authority to find facts. Tbe judgment there rendered is set aside, and tbe case is remanded for further proceeding.

Remanded.