#### M. P. JONES v. HUNTER R. NEISLER.

(Filed 19 December, 1947.)

1. Landlord and Tenant § 37—

Tbe grantor of land reserved tbe bunting rights in himself and later gave an oral lease of the hunting rights at a stipulated sum yearly. The successor to the grantee refused to permit the lessee of the hunting rights to enter upon the property for the purpose of 'hunting. *Sold:*The lessor cannot maintain an action against defendant for damages, since if the lease of the hunting rights is valid the lessee and not the lessor is the one who suffered the damages, whereas if the lease is void defendant cannot be made to respond in damages for refusing to recognize it.

2. Parties § 1—

Every action must be prosecuted in the name of the real party in interest. G. S., 1-57.

Appeal by plaintiff from *Bone, J.,*at April Term, 1947, of Bladek.

Tbis is a civil action to recover damages against tbe defendant for refusing to permit one Jay Smith, to wbom plaintiff bad orally leased tbe bunting right on tbe land described in tbe record, from entering upon tbe property for tbe purpose of bunting.

*445Tbe agreed facts pertinent to tbis appeal are as follows :

1. On 16 November, 1938, tbe plaintiff was tbe owner in fee simple of tbe tract of land described in tbe complaint and on said date be executed and delivered to bis wife, Essie Maud Jones, a deed for tbe property, wbicb deed contained tbe following reservation: “However, tbe said M. P. Jones does hereby reserve unto bimself and except from tbis conveyance tbe bunting right on said described property for a period of ninety-nine years.

2. Tbe defendant is now tbe owner of tbe tract of land referred to herein.

3. Sometime prior to 2 October, 1944, tbe plaintiff undertook to lease orally to one Jay Smith for tbe sum of $80.00 per year such bunting rights, if any, as were reserved to plaintiff in bis deed to bis wife.

4. It was agreed that tbe damages, if any, should be awarded in tbe sum of $120.00.

5. Tbe plaintiff on 3 November, 1939, executed and delivered to Ed Mitcbem *et al.*an assignment of bis bunting rights on tbis tract of land, which instrument is duly recorded in tbe office of tbe Eegister of Deeds of Bladen County. However, tbis assignment is not to be effective until tbe death of tbe plaintiff.

Upon tbe foregoing facts and tbe admissions in tbe pleadings, tbe court was requested by tbe plaintiff and tbe defendant to render judgment in accordance with the court’s opinion as to tbe legal rights of tbe parties.

Tbe court held as a matter.of law, that the plaintiff was not entitled to recover anything and entered judgment accordingly.

Tbe plaintiff appeals, assigning error.

*Clayton C. Holmes and H. L. Williamson for plaintiff, appellant.*

*II. H. Ciarle and Edward B. Clark for defendant, appellee.*

DeNNy, J.

Tbe record does not disclose tbe ground upon wbicb tbe court below held tbe plaintiff is not entitled to recover in tbis action. Nevertheless, we think tbe contention of tbe defendant that tbe complaint does not state a cause of action against him is correct.

Tbe plaintiff alleges be gave an oral lease of bis bunting rights on tbe premises in question, to a third party for a valuable consideration; and brings tbis action for damages against tbe defendant for refusing to permit tbe lessee to exercise such rights. Tbe date of tbe lease is not alleged nor is tbe date of its termination disclosed.

If during tbe period of time 'in question, tbe lessee held a valid assignment of tbe plaintiff’s bunting rights, and was wrongfully prevented from exercising those rights by tbe defendant, tbe lessee, and not tbe *446plaintiff, is tbe one who suffered damages. Every action must be prosecuted in tbe name of tbe real party in interest. G. S., 1-57. Tbe lessee is not a party to tbis action. On tbe other band, if tbe lease is void tbe defendant cannot be made to respond in damages for refusing to recognize it.

A determination of *the*validity or invalidity of tbe lease or assignment of tbe bunting rights, not being essential to a disposition of tbis appeal, we express no opinion thereon.

Tbe judgment of tbe court-below will be upheld.

Affirmed.