Graves v. Barrett

• Decision Date: 27 March 1900
• Citation: 35 S.E. 539,126 N.C. 267
• Court: North Carolina Supreme Court
• Parties: GRAVES v. BARRETT et al.

35 S.E. 539

126 N.C. 267

GRAVES

v.BARRETT et al.

Supreme Court of North Carolina.

March 27, 1900.

PARTITION—ANSWER—SOLE SEISIN—FAILURE TO ALLEGE—EJECTMENT—DESCRIPTION OF PROPERTY—DEMURRER ON APPEAL.

1. Defendants in partition in their answer denied the plaintiff's interest as co-tenant, admitted their own interest in the land, but did not aver sole seisin in themselves. Code, § 1892, requires an allegation in partition proceedings of seisin and possession as tenants in common. Held, that the answer did not convert the action into one of ejectment, requiring the plaintiff to show title out of the state, and, as title is not in issue in partition unless sole seisin is alleged, plaintiff need not prove any title anterior to that of the common source.

2. Where defendants in a partition proceeding fail to put title in issue by pleading sole seisin in themselves, but treat the action as one of partition, and the case is tried upon the issues in partition, on appeal defendants cannot contend that the rules applicable to an action of ejectment should be applied.

3. Where the description of land in a complaint in partition was sufficient to inform defendants of the exact land in controversy, a demurrer to the petition for insufficiency of description cannot be made for the first time in the supreme court.

Appeal from superior court, Moore county; Bryan, Judge.

Petition for partition by G. C. Graves against Jesse Barrett and others. Prom a judgment for plaintiff, defendants appeal. Affirmed.

Seawell & Burns, for appellants.

Black & Adams, for appellee.

CLARK, J. Samuel Barrett In 1867 made a deed for a tract of land to the "heirs of John A. Barrett" Said John A. Barrett is the son of the grantor, and is still living. By section 1329 of the Code, this deed, which would have been void at common law, nam nemo haeres viventis, is construed to be a limitation to the children of John A. Barrett. At the time of the execution of the conveyance he had two children—John M. and Jesse; and there are two born since, —Charles and Bertha. John M. mortgaged his "one-fourth undivided interest" in said tract The mortgage was foreclosed, and the plaintiff, who became the purchaser, filed a petition in partition before the clerk; Jesse and Charles Barrett and their sister Bertha, with her husband, being defendants. The answer denies the allegations in the complaint of plaintiff being tenant in common with them of said land, but does not aver sole seisin in themselves. On the contrary, It admits (by not denying) that each of defendants own, as alleged in the second paragraph of the complaint, an undivided one-fourth interest therein, and, as the decree awards them that, the defendants have no cause to complain.

Upon the above state of facts in proof, the court instructed the Jury, if they believed the evidence, which was uncontroverted, to respond to the issues that plaintiff was co-tenant with defendants, and entitled to an undivided one-fourth. The defendants, who excepted and appealed, contend that the plaintiff was not entitled to the instruction given, because the plaintiff has not shown title out of the state. They contend that the denials in the answer converted this into an action of ejectment, and that, two of the defendants having been born since the deed of Samuel A. Barrett to the heirs of John A. Barrett, they do not take thereunder, and hence the rule of practice...