Carolina Mineral Co. v. Young

• Decision Date: 05 November 1941
• Docket Number: 246.
• Parties: CAROLINA MINERAL CO. v. YOUNG.
• Court: North Carolina Supreme Court

17 S.E.2d 119

220 N.C. 287

CAROLINA MINERAL CO. v. YOUNG.

No. 246.

Supreme Court of North Carolina

November 5, 1941

The plaintiff, alleging that actual partition could not be made brought this proceeding under C.S. § 3237, Michie's Code 1939, to have certain mineral interests, which it holds in common with defendant, sold for division of proceeds. Defendant admitted the common ownership, but denied the right of plaintiff to present partition as sought, upon the ground that plaintiff, before purchase of an interest in the property, had entered into a lease contract with defendant and his cotenant in which it had agreed to mine the property for twenty-six years and to pay defendant and his co-owner a specified royalty during this period, by which, along with other provisions of the contract inconsistent with the present proceeding, plaintiff is estopped to request a sale of the interests.

Plaintiff and defendant also joined issue with respect to surface rights necessary to recovery of the minerals, which plaintiff claimed to own exclusively and declared in its petition were "not for sale".

The clerk, deciding that the petition and answer raised issues for the jury, transferred the proceeding to the civil issue docket without objection of either party. The matter came on for hearing before Judge Sink, who heard the matter by consent without the intervention of a jury.

On the hearing, the lease contract between the parties was introduced in evidence on behalf of the defendant. The plaintiff introduced no evidence upon the question whether actual partition could be made.

The judge made an order for the sale of the property and division of the proceeds, without adjudicating the controversy between the parties as to the character of the surface rights claimed by plaintiff and the opposing rights of the defendant. As to the necessity of sale instead of division, the order finds merely "*** that the mineral interest is incapable of actual division, and that the petitioner is entitled to have a partition of the mineral interest in said tract of land by way of sale."

The defendant excepted and appealed. He grounds his case here on four allegations of error with respect to the judgment: (1) that the plaintiff was estopped from seeking a sale of the lands for partition by the terms of its lease; (2) that the order of sale was not within the power of the court because there was no allegation, evidence, or finding of fact that "a partition sale in this case would be for the best interests of the tenants in common" as required by statute; (3) that the judge failed to determine the controversy between the parties respecting the surface rights claimed by plaintiff, thus tacitly affirming plaintiff's claim practically closing the market against buyers at the sale; and (4) (on demurrer ore tenus in this court) "that said petition fails to state facts sufficient to constitute an action for that there are no allegations meeting the requirements of C.S. § 3237."

W. C. Berry, of Bakersville, and Charles Hutchins and Anglin & Randolph, all of Burnsville, for appellant.

Watson & Fouts, of Burnsville, for appellee.

SEAWELL Justice.

Ordinarily the existence of a lease on lands held in common ownership will not prevent partition at the instance of a cotenant. 2 Tiffany, Real Property, 3d Ed., 1939, 317 and cases cited. And this is true although one of the cotenants is lessee (Tiffany, loc. cit., supra), at least where actual division of the property is the relief sought. Buhrmeister v. Buhrmeister, 10 Cal.App. 392, 102 P. 221; Hunt v. Hazelton, 5 N.H. 216, 20 Am.Dec. 575. Contra: Cannon v. Lomax, 29 S.C. 369, 7 S.E. 529, 1 L.R.A. 637, 13 Am.St.Rep. 739. Where there is partition in kind, the ascertainment and allotment to the lessor-cotenant of his share in severalty leaves him the owner of the land and entitled to demand and receive his proportionate rent as before. But where the lessee buys in as cotenant and seeks a sale of the land for the purpose of dividing the proceeds, the rights of the parties are subject to radical change and the authorities are divided. See (allowing sale) Hill v. Reno, 112 Ill. 154, 54 Am. Rep. 222; Peterman v. Kingsley, 140 Wis. 666, 123 N.W. 137, 133 Am.St.Rep. 1107; (denying sale) McIntire v. Midwest Theatres Co., 88 Colo. 559, 298 P. 959; Arnold v. Arnold et al., 308 Ill. 365, 139 N.E. 592. Many decisions which support merely the general statement that a lease is no obstacle to partition are based upon the extent to which constructive possession through a lessee satisfies the common law prerequisites of possession and common ownership in parties to a partition suit. Where thus limited, these cases are not apt authority on the question before us. 4 Thompson, Real Property, Perm. Ed., 1940, § 1992, n. 88; 2 Tiffany, Real Property, 3d Ed., 1939, 317, n. 14.

The matter is one of first impression here, and we think it is our duty and privilege to adopt that construction of the law which we find most consonant with the principles of justice and equity.

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, W.Va., 12 S.E.2d 524. In 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. That a sale of the land may bring about a train of incidents unknown to the common law remedy of actual partition is obvious, and that some of these should be equitable in their nature seems only to be expected.

There is a unanimity of opinion and decision that partition is a matter of right. Holmes v. Holmes, 55 N.C. 334; Haddock v. Stocks, 167 N.C. 70, 83 S.E. 9; Foster v. Williams, 182 N.C. 632, 109 S.E. 834; Barber v. Barber, 195 N.C. 711, 143 S.E. 469. Unquestionably that is true, at this time, whether the cotenant seeks to have the land partitioned in kind or by sale, where the conditions antecedent to the exercise of the right exist. 17 Am. & Eng. Enc. Law 786; 20 R.C.L. 774. But this right is not inalienable. McIntire v. Midwest Theatres Co., supra. Its exercise may be qualified, defeated or postponed by...