Brown v. Boger, 473

• Decision Date: 15 January 1965
• Docket Number: No. 473,473
• Citation: 263 N.C. 248,139 S.E.2d 577
• Court: North Carolina Supreme Court
• Parties: Richard Lane BROWN, III (Unmarried) and Charles Palmer Brown (Unmarried), Petitioners, v. Robert Martin BOGER and wife, Evelyn Boger, Nancy Groves Boger Forte and husband, Kenneth Eugene Forte, and Cabarrus Bank & Trust Company and M. A. Boger, Trustees Under the Will of Ida Groves Boger, Defendants.

Page 577

139 S.E.2d 577

263 N.C. 248

Richard Lane BROWN, III (Unmarried) and Charles Palmer Brown (Unmarried), Petitioners, v. Robert Martin BOGER and wife, Evelyn Boger, Nancy Groves Boger Forte and husband, Kenneth Eugene Forte, and Cabarrus Bank & Trust Company and M. A. Boger, Trustees Under the Will of Ida Groves Boger, Defendants.

No. 473.

Supreme Court of North Carolina.

Jan. 15, 1965.

D. D. Smith and Hobart Morton, Albemarle, for defendant appellants.

Richard L. Brown, Jr., and S. Craig Hopkins, albemarle, for petitioner appellees.

MOORE, Justice.

Defendants except to and assign as error the findings of fact and conclusions of law set out in numbered paragraphs 6, 7, 9, 10 and 11 of the judgment below. They say and contend that the evidence does not support the findings of fact and the findings of fact do not support the conclusions of law.

For a clear understanding of the problem presented, a brief review of the legal principles involved is essential.

'At common law and in equity as well, in proceedings for partition of land, the cotenants were entitled to partition in kind if they so demanded, regardless of the difficulty or inconvenience of doing so. Only by consent of parties did the courts have power to order a sale of the land and a division of proceeds among the common owners.' 40 Am.Jur., Partition, § 83, p. 72. 'By original equitable jurisdiction, independent of any statute, if all of the parties sui juris were willing, the court had power to decree a sale; and this, even though infants might be among the parties interested. But where one of the parties sui juris refused his consent, the court had no option but to proceed with the ordinary mode of partition.' 4 Pomeroy's Equity Jurisprudence, 5th Ed., § 1390, pp. 1018, 1019. See also 4 Thompson on Real Property, § 1828, p. 308. It seems that courts of equity gradually assumed authority to order sales of land for partition in instances of extreme hardship, without statutory sanction, and in cases where one or more contenants did not consent. Whether the courts of equity had such authority became a matter of concern to the courts and the General Assembly of North Carolina early in the Nineteenth Century. In Carolina Mineral Co. v. Young, 220 N.C. 287, 17 S.E.2d 119, 151 A.L.R. 383, we find the following: 'Although there is authority for the view that partition by sale of lands could formerly be made under the equitable jurisdiction of the courts, 17 Am. & Eng.Enc.Law 785; Wolfe v. Galloway, 211 N.C. 361, 190 S.E. 213, statutes authorizing such sale have been regarded as innovations upon the common law and in derogation thereof. 2 Tiffany, Real Property, 3d Ed., 1939, 325; 17 Am. & Eng.Enc.Law 785; Hale v. Thacker , 12 S.E.2d 524. It this state statutory relief of that sort apparently derives from the statute of 1812, Chapter 847, Laws of North Carolina, Potter, Vol. 2, the preamble of which indicates both the origin and nature of the relief as follows: 'Whereas doubts exist as to the power of courts of equity to order a sale of real estate in cases of partition, where an equal and advantageous division cannot be made. Be it enacted, &c,' and there follows the grant of the power.' The statute of 1812 provides 'That it shall and may be lawful for any court of equity in cases of application for a division of real estate, when it shall be suggested and made to appear to the satisfaction of the court, that an actual partition cannot be made without injury to some or all of the parties interested, to order a sale of the property upon such terms as such court shall deem just and reasonable.' 2 Ptter: Laws of North Carolina, Ch. 847, p. 1239. So, in this jurisdiction prior to 1868, partition between tenants in common was a matter to be determined by a court of equity. Haddock v. Stocks, 167 N.C. 70, 83 S.E. 9. In a case in equity, Windley v. Barrow, 55 N.C. 66 (1854), it is declared: 'prima facie, each party interested in a tract of land, is entitled to an actual partition, and it is incumbent on him who asks for a sale to show, that his interest will be promoted by it, and that no loss will be worked by it to any other party. Davis v. Davis, 2 Ire.Eq. 607 (37 N.C. 607).' Further: 'In cases of partition, a court of equity does not act merely in a ministerial character, but it administers its relief ex equo et bono, according to justice and equity.

Procedures have changed but not substantive principles. Partition of land is by special proceeding. G.S. § 46-3; G.S. § 46-22. Whether land should be divided in kind or sold for partition is a question of fact for decision of the clerk of superior court, subject to review by the judge on appeal; it is not an issue of fact for a jury. Ledbetter v. Pinner, 120 N.C. 455, 27 S.E. 123; Talley v. Murchison, 212 N.C. 205, 193 S.E. 148. G.S. § 46-22 provides that 'Whenever it appears by satisfactory proof that an actual partition of the lands cannot be made without injury to some or all of the parties interested, the court shall order a sale of the property described in the petition, or any part thereof.' The general rule (interpreting the statutes) presently applied is: 'A tenant in common is entitled, as a matter of right, to a partition of the land to the end that he may have and enjoy his share therein in severalty, unless it is made to appear that an actual partition cannot be had without injury to some or all of the interested parties.' Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369; Hyman v. Edwards, 217 N.E. 342, 7 S.E.2d 700. There is unanimity of opinion and decision that partition of land in kind is a matter of right. Carolina Mineral Co. v. Young, supra; Barber v. Barber, 195 N.C. 711, 143 S.E. 469; Trull v. Rice, 85 N.C. 327; Windley v. Barrow, supra. But this right of actual partition may not be so used as to injury another. Trull v. Rice, supra. The burden is upon those alleging the necessity and desirability of a sale to establish the necessary requisites. Seawell v. Seawell, supra; Wolfe v. Galloway, Supra; Windley v. Barrow, supra. 'As between a partition in kind or sale of land for division, the courts and the statutes favor a partition in kind, if it can be accomplished equitably and fairly, since this does not disturb the existing form of inheritance or compel a person to sell his property against his will, which, it has been said, should not be done except in cases of imperious necessity. * * * It is no objection to a partition in kind that some of the cotenants prefer a sale to a partition * * *.' 68 C.J.S. Partition § 125, pp. 186, 187; 4 Pomeroy's Equity Jurisprudence, 5th Ed., § 1390, p. 1019; 4 Thompson on Real Property, § 1828, p. 310; Tuggle v. Davis, 292 Ky. 27, 165 S.W.2d 844, 143 A.L.R. 1087 (1942); Owings v. Talbott, 262 Ky. 550, 90 S.W.2d 723 (1936).

It is essential to a sale of land for partition that it be established that an actual division in kind cannot be made without njury to some or all to the cotenants. G.S. § 46-22. By 'injury' to a cotenant is meant substantial injustice or material impairment of his rights or position, such that it would be unconscionable to require him to submit to actual partition. 68 C.J.S. Partition § 127, p. 190. Since partition in kind is favored, such partition will be ordered, even though there may be some slight disadvantages advantages in pursuing such method. ibid., p. 192. A sale will not be ordered merely for the convenience of one of the cotenants. ibid., p. 190. The physical difficulty of division is only a circumstance for the consideration of the court. Carolina Mineral Co. v. Young, supra. On the question of partition or sale the determinative circumstances usually relate to the land itself, and its location, physical condition, quantity, and the like. 68 C.J.S. Partition § 127, p. 193. 'The test of whether a partition in kind would result in great prejudice to the cotenant owners is whether the value of the share of each in case of a partition would be materially less than the share of each in the money equivalent that could probably be obtained for the whole.' (Emphasis added). 4 Thompson on Real Property, § 1828, p. 309. But many considerations, other than monetary, attach to the ownership of land. Hale v. Thacker, 122 W.Va. 648, 12 S.E.2d 524 (1940). No exact rule is possible of formulation to determine the question whether there should be a partition in kind or a partition by sale. The determination must be made on the facts of the particular case. 68 C.J.S. Partition § 127, p. 190. There should be a partition in kind unless such partition will cause material and substantial injury to some or all of the parties interested.

The court has no authority to order a sale of land for partition without satisfactory proof of facts showing that an actual partition will cause injury to some or all of the cotenants. Wolfe v. Galloway, supra. The essential facts must be found by the court. Seawell v. Seawell, supra. The findings of the judge are conclusive and binding if there is any evidence in the record to support them. West v. West, 257 N.C. 760, 127 S.E.2d 531. The judge has reasonable discretion in making the determination, and his decision will not be disturbed in the absence of some error of law. Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76.

In the instant case there is no finding that the 1250 acres of land cannot be divided so that seven-tenths in value could be allotted to plaintiffs and three-tenths in value to defendants. And if such finding had been made, it would not find support in any probative evidence in the record. At most the evidence would justify a finding that an actual division of the land would entail more time and expense than a smaller tract of uniform condition...