Opinion
Filed 7 July, 1961.
1. Controversy Without Action 2 — Where the parties submit a controversy to the court upon an agreed statement of facts and admissions in the pleadings, the facts stipulated and admitted are in the nature of a special verdict, and the court may not infer or deduce other facts.
2. Municipal Corporations 17 — Findings held insufficient to support adjudication of whether city was authorized to sell lands as surplus property. Where, in a proceeding to authorize sale by the city, as surplus property lands designated as "airport property," the facts agreed failed to disclose whether the land was purchased with the proceeds of a bond issue whether any bonds against the property are presently outstanding, whether the entire tract was originally acquired for airport purposes, whether an airport is being operated on a portion of the original tract, with the locus being surplus, whether an airport is being operated on separate property, or whether the city had maintained and abandoned the operation of an airport on the property, the findings are insufficient to support a judgment authorizing the city to sell the land as surplus property under G.S. 63-53(d) and G.S. 160-59.
3. Appeal and Error 49 — Where the facts agreed in the submission of the controversy to the court are insufficient to support judgment, the cause must be remanded.
APPEAL by defendant from Johnston, J., March 1961 Term of ROCKINGHAM.
Jule McMichael and T. M. Rankin for plaintiff, appellee.
Benjamin R. Wrenn for defendant, appellant.
PARKER and HIGGINS, JJ., dissent.
RODMAN, J., concurring.
This is a civil action instituted 7 February 1961 to require defendant to specifically perform its contract for purchase of the "Reidsville Airport Property."
The cause was submitted to the presiding judge upon an agreed statement of facts and the admissions in the pleadings.
The court entered judgment in pertinent part as follows:
"1. That on the 15th day of November 1960, the plaintiff adopted a resolution for the sale of its `Airport Property,' subject to specified conditions and restrictions as are incorporated by reference in paragraph #4 of the plaintiff's complaint.
"2. That the City Council duly advertised as required by law said sale of real property at public auction, which was held on the 7th day of January 1961, subject to the restrictions and conditions set forth in the said resolution.
"3. That there was no fraud or arbitrary abuse of discretion on the part of the City Council in adopting the said resolution.
"4. That the Mayor and City Council of the City of Reidsville had the legal power and authority to sell its real property known as the `Airport Property' in the manner prescribed in the said resolution of November 15, 1960.
"5. That said property is surplus city property no longer needed by the city and should be sold by the city. That said property is no longer needed for an airport. That said property is a mile from the city limits and is not needed for any Governmental or public purpose.
"6. That the City of Reidsville has no substantial need for the land it now owns and holds for Airport purposes. The city has no immediate use to which the said land can be reasonably put and there are no plans in prospect to which the said land could be reasonably devoted. That the disposal of said land in the manner done is to the best interest of the citizens and taxpayers of the City of Reidsville.
"NOW, THEREFORE, IT IS ORDERED that the defendant perform its purchase contract and agreement and pay to the plaintiff FORTY THOUSAND, FIVE HUNDRED ($40,500.00) DOLLARS, the remainder of the purchase price, with interest from the 6th day of February 1961 . . . ."
Defendant appeals.
Plaintiff proposes to convey 155.52 acres of land known as the Reidsville Airport property, under authority of G.S. 63-53(d) and G.S. 160-59. On 15 November 1960 the City Council of the City of Reidsville adopted a resolution finding that the City "no longer had any need for . . . the Airport property," and ordering that it be sold at public auction subject to specific conditions and covenants restricting its use to industrial and commercial purposes. Due advertisement of the sale and the terms thereof was had. Defendant became the last and highest bidder at the price of $45,000, deposited ten percent of the bid, and executed a contract in which it agreed to purchase the land according to the terms of sale and at the price bid. The sale was confirmed. Plaintiff executed and tendered to defendant a deed for the land containing the restrictions. Defendant refused to pay the balance of the purchase price and accept the deed. This action for specific performance was instituted and the judgment set out above was entered. Defendant excepts to the signing of the judgment.
The admissions in the pleadings and the facts stipulated are insufficient to support the findings and conclusions of the court that ". . . the Mayor and City Council of the City of Reidsville had the legal power and authority to sell its real property known as the `Airport Property' . . .," and that ". . . said property is surplus city property."
"Where, as here, a case is tried on an agreed statement of facts, such statement is in the nature of a special verdict, admitting there is no dispute as to the facts, and constituting a request by each litigant for a judgment which each contends arises as a matter of law on the facts agreed, and consequently the court is not permitted to infer or deduce further facts from those stipulated." Sparrow v. Casualty Co., 243 N.C. 60, 62, 89 S.E.2d 800. Where agreed facts are insufficient to determine the controversy, the cause will be remanded for further proceedings as the rights of the parties may require. Guilford College v. Guilford County, 219 N.C. 347, 349, 13 S.E.2d 622.
It does not appear from the record whether the 155.52 acres known as the Airport property was acquired by the City of Reidsville from funds realized from the bond issue approved by this Court in Turner v. Reidsville, 224 N.C. 42, 29 S.E.2d 211 (1944), or by other means, whether there are presently any outstanding airport bonds, whether it is the entire tract originally acquired for airport purposes, whether an airport is now being operated on a portion of the original tract with the 155.52 acres being surplus property not needed in that connection, whether an airport is being operated on other and separate property and this tract is no longer necessary for airport purposes, whether Reidsville has even constructed, maintained, and operated an airport, or whether an airport was formerly operated and was before 15 November 1960 abandoned.
Quaere: Is the proposed sale subject to the provisions of G.S. 160-2, subsec. 6?
The judgment below is vacated and the cause is remanded for further proceedings and that sufficient evidence may be adduced to support a Judgment determining the controversy.
Remanded.
PARKER and HIGGINS, JJ., dissent.