Donnell v. Mateer

• Decision Date: 31 December 1850
• Citation: 42 N.C. 94,7 Ired.Eq. 94
• Court: North Carolina Supreme Court
• Parties: JAMES M. DONNELL et al. v. JOHN MATEER et al.

7 Ired.Eq. 94

42 N.C. 94

JAMES M. DONNELL et al.

v.JOHN MATEER et al.

Supreme Court of North Carolina.

December Term, 1850.

The right of a tenant in common to partition of a legal estate is as absolute in a Court of equity as in a Court of law. The Courts, having concurrent jurisdiction, as to an actual partition, must adjudicate on the same principles.

In the case of a petition at law for an actual partition, if the defendant wishes to avail himself of an equitable defence, as, for instance, a claim under a contract for purchase, he must obtain an injunction to stay proceedings at law, until the cause can be heard in equity.

If the application for partition be to a Court of Equity, it is not sufficient for the defendant to rely upon his equitable grounds of defence in his answer. He ought, to entitle himself to his equity, to file a cross bill, for which the Court would allow him a reasonable time; but his failure to do so, will not prevent him from filing a separate bill for relief, as the partition affects the legal title only, and the share, assigned in severalty, could still be reached.

Cause transmitted from the Court of Equity of Rockingham County, at the Fall Term 1850.

This was a bill for the sale, for partition, of a tract of land, alleged by the plaintiffs to belong to them and the defendants, as tenants in common. The case appeared from the pleadings to be this:

William Mateer died intestate in 1835, seised in fee of a tract of land containing 100 acres, and described in the bill. He left no issue; but his heirs at law were two brothers, the defendants, Andrew and John, and two sisters Polly and Margaret, who held the premises as tenants in common. Polly intermarried with Joseph Donnell, and they had issue one child, James M. Donnell, who is one of the plaintiffs, and then died; and Margaret intermarried with Joseph D. Watson and had one child, John H. C. Watson, who is one of the plaintiffs, and then she died. The bill was filed in March 1849 and prays for partition of the premises, and, to that end, for a sale thereof, and that one fourth part be set out to the plaintiffs respectively. The answer admits the seisin of William and the descent from him to his brothers and sisters, as stated in the bill. It further states, that shortly after the death of William, their father, James Mateer, made a contract with his children John, Polly, and Margaret, for the purchase of their shares of the premises at the price of $375, which he discharged by paying to each of them $125; but that, the transaction being in the family, he took no receipts therefor, nor conveyance, nor any written memorandum of the contract of the land: that he also agreed, at the same time, with the defendant, Andrew, to give him the same price for his share, or to leave the whole tract to him by will; and that he afterwards devised the land to Andrew in fee and died in 1845. The answer states, that the plaintiff, Donnell, had recently acknowledged, that his father and mother made the contract of sale and received their share of the purchase money, and for that reason he professed himself willing to convey to the defendant, Andrew, his one fourth part of the land. And the answer insists, that the contract of sale is good and valid, and ought to be specifically decreed in this Court; and that, therefore, the defendant, Andrew, is the equitable owner of the whole...