Justice FRYE dissenting.

WHICHARD, Justice.

Plaintiffs 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, "to 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."

While 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 "with the right or privilege to sell or convey the said real estate in any form or manner."

Prior to his death 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's death, and their spouses, claim title as remaindermen under the will of A. E. Kirkman.

The trial court did not determine whether plaintiffs held vested remainder interests. It found as a fact that plaintiffs had not registered "any claim or title they may have" within the thirty-year period provided for in N.C.G.S. 47B-4, the Marketable Title Act. (Emphasis added.) It concluded that "any rights" of plaintiffs in the land thus were extinguished by N.C.G.S. Chapter 47B. (Emphasis added.)

On 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 "interlocutory in nature." Kirkman v. Wilson, 98 N.C. App. 242, 245, 390 S.E.2d 698, 700 (1990). It nevertheless "treat[ed] plaintiffs' appeal as a petition for certiorari" and elected to consider it. Id.

The majority in the Court of Appeals held that:

As 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' 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' interest was extinguished by the Act and these defendants prevail.

Id. 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' 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.

Plaintiffs exercised their right to appeal based on Judge Greene's dissent. N.C.G.S. 7A-30 (2) (1989). On 29 August 1990 we allowed plaintiffs' petition for discretionary review on the issue of "[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." 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 "Marketable Title Act extinguish[ed] plaintiffs' vested remainder interest" in the property to which the Everettes hold a record title by mesne conveyances from G. C. Kirkman.

We hold that the Court of Appeals erred in treating plaintiffs' interlocutory appeal as a petition for certiorari and considering the appeal. As the Court of Appeals noted, "[t]here still remain several unresolved issues of law and fact that were raised by the pleadings." 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 "any claim or title" or "[a]ny rights" plaintiffs "may have." A decision on such a record would constitute an advisory opinion on abstract questions, and this "court will not give advisory opinions or decide abstract questions." 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 "does not extend to the submission of a theoretical problem or a `mere abstraction'"). "The 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." 5 Am. Jur.2d Appeal and Error 761 (1962).

Accordingly, 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 "so that the controverted and determinative facts may be established and rulings as to the law made in relation thereto." Boswell v. Boswell, 241 N.C. at 521, 85 S.E.2d at 904.

Vacated and remanded.