Bland v. Faulkner

• Decision Date: 26 October 1927
• Docket Number: 213.
• Citation: 139 S.E. 835,194 N.C. 427
• Parties: BLAND et al. v. FAULKNER.
• Court: North Carolina Supreme Court

139 S.E. 835

194 N.C. 427

BLAND et al. v. FAULKNER.

No. 213.

Supreme Court of North Carolina

October 26, 1927

Appeal from Superior Court, Lenoir County; Sinclair, Judge.

Proceeding for partition by R. E. Bland and wife and others against Q A. Faulkner. From the judgment, plaintiffs Bland and wife appeal. Affirmed.

Plaintiffs in partition proceeding waived exceptions to commissioners' partition report, where thereafter they accepted conveyance from coplaintiffs of their allotted part.

Where plaintiff, in partition, had ratified commissioners' report of division by accepting conveyance from coplaintiff evidence of subsequent rescission of contract held immaterial.

This is a proceeding for partition of land situate in Lenoir county. Summons was issued on January 8, 1919. The report of the commissioners making the partition was filed in the office of the clerk of the superior court on March 10, 1919. Exceptions were filed to said report by plaintiffs on March 19, 1919. On March 24, 1925, an order was made by the clerk setting aside the report. Upon appeal from this order, heard at February term, 1927, the order of the clerk was reversed, the exceptions overruled, and the report of the commissioners confirmed.

During the pendency of the proceeding, to wit, on December 2, 1919 plaintiffs, Jesse Wallace and wife, conveyed by deed to their coplaintiffs, R. E. Bland and wife, a portion of the share of said land allotted to them in the report of the commissioners, then on file in the clerk's office awaiting his action upon the exceptions thereto filed by plaintiffs. The deed conveying the land contains the following words with reference to the description: "The above 41-acre tract is to be surveyed and cut off from the Jesse Wallace tract of land, and is to be surveyed after the final settlement of a suit now pending in Lenoir county, entitled 'Jesse Wallace and Wife and R. E. Bland and Wife v. Q. A. Faulkner and Wife."' The suit therein referred to is this special proceeding for partition.

At the time of the conveyance of said land, R. E. Bland and wife executed their notes for part of the purchase price thereof, and conveyed said land to Jesse Wallace by mortgage deed to secure the payment of said notes. R. E. Bland and wife went into possession of said land under said deed soon after its date, and have continued in such possession. On March 24, 1925, Jesse Wallace and wife filed in this proceeding a paper writing, called by them a special plea, wherein they withdrew their exceptions to the report of the commissioners, and prayed that no further action be taken with reference to said exceptions. They alleged that their coplaintiffs, R. E. Bland and wife, were estopped by their acceptance of the deed and their execution of the mortgage from further insisting upon their exceptions.

Upon the hearing of the appeal from the order of the clerk setting aside the report of the commissioners on March 24, 1925, at February term, 1927, the court submitted an issue to the jury, which was answered as follows:

"What is the true dividing line between the lands of the parties hereto as tenants in common and the defendant, Q. A. Faulkner, individually? Answer: X to Z."

From judgment overruling all the exceptions to the report of the commissioners, confirming said report, and directing that the true dividing line as found by the jury be located by a surveyor, plaintiffs R. E. Bland and wife appealed to the Supreme Court.

Rouse & Rouse, of Kinston, for appellants.

Cowper, Whitaker & Allen, of Kinston, for appellees Wallace and Wife.

F. E. Wallace and C. W. Pridgen, Jr., both of Kinston, and Ward & Ward, of Newbern, for appellee Faulkner.

CONNOR J.

The controversy in this proceeding between the plaintiffs on the one part, and the defendant, on the other, originally, was as to whether there should be an actual partition of the land owned by them as tenants in common or a sale for division. The commissioners appointed by the clerk pursuant to his order made an actual partition, allotting to the parties to the proceeding their shares in said land by metes and bounds in severalty. Exceptions were filed to their...