Gregory v. Pinnix

• Decision Date: 21 February 1912
• Citation: 73 S.E. 814,158 N.C. 147
• Parties: GREGORY v. PINNIX et al.
• Court: North Carolina Supreme Court

73 S.E. 814

158 N.C. 147

GREGORY v. PINNIX et al.

Supreme Court of North Carolina

February 21, 1912

Appeal from Superior Court, Camden County; Cline, Judge.

Partition proceedings by J. W. Gregory against Hannah C. Pinnix and others. From an order setting aside an order of sale made by the clerk and directing the issues of fact to be decided plaintiff appeals. Affirmed.

Pleadings must be liberally construed.

This is a proceeding to sell lands for partition, heard in the superior court, on appeal from the clerk of Camden county.

The petitioner alleges, among other things: "(1) That he is a tenant in common, is seised in fee, and is the owner of the following described lands, lying and being in the county and state aforesaid, situated in the jurisdiction of this court and bounded as follows: *** (17) That the interest of your petitioner in said land is as follows: 291/1296. (18) That the interests of the defendants are as follows: Mrs. Hannah C. Pinnix, 194/1296 undivided interest; N.M. Ferebee 388/1296 undivided interest. That plaintiff is advised believes, and alleges that John J. Old, John Hinton Elizabeth Old, Lovey Grisham, Louisa Old, Hollowell Old, Jr., James Old, the persons named in count 2 as heirs at law of Hollowell Old, are dead, and that their heirs at law jointly own 423/1296 of said property, viz.: That the heirs at law of John J. Old, who are unknown to your petitioner, jointly own 9/1296. That the heirs at law or devisees of John Hinton, who are, as your petitioner is informed and believes, Mary F. Hinton, Sophia L. Sawyer, whose husband is Lee Sawyer, Charles L. Hinton, E. V. Hinton, W. E. Hinton, and R. L. Hinton, jointly own 81/1296. That the heirs at law of Lovey Grisham, who are unknown to your petitioner, jointly own 9/1296. That the heirs at law of Hollowell Old, who are unknown to your petitioner, jointly own 81/1296. That the heirs at law of James Old, who, as your petitioner is informed and believes, are Livius L. Old, Lula J. Walker (whose husband is L. B. Walker), James H. Old, Eva L. Ferebee (whose husband is E. D. Ferebee), Daisey E. Brooke (whose husband is T. L. Brooke), James E. Smith, James E. Old, Edward J. Smith, Mary M. Smith, Agustus C. Smith, Earl Smith, Roy Smith, Hulda F. Smith (whose husband is -- Smith), and Samuel F. Old, jointly own 81/1296 thereof." These allegations are denied in the answers, and, in addition to a denial, the defendants allege that, if the petitioner had a deed for any part of the land described in the petition, he owned no beneficial interest therein, but held the title, if any he had, for the Richmond Cedar Works.

In this condition of the pleadings his honor held that issues of fact were raised, and directed that the same be tried before a jury, to which the petitioner excepted. His honor also permitted certain answers to be filed, which had been stricken out by the clerk, because not filed within the time prescribed by law, and the petitioner excepted. The appeal is by the petitioner from the order setting aside the order of sale made by the clerk, and directing that the issues of fact be passed on.

J. C. B. Ehringhaus and G. W. Ward, for appellant.

J. K. Wilson, W. A. Worth, E. F. Aydlett, and J. C. Biggs, for appellees.

ALLEN J.

The ruling of his honor that the denial in the answer of the allegation in the petition that the petitioner is a tenant in common with the defendants, and is seised in fee, raises an issue of fact would not be questioned, but for certain expressions in several of our decisions, which considered without reference to the facts in the cases and the history of proceedings in partition would render it doubtful. The first of these cases is Purvis v. Wilson, 50 N.C 23, 69 Am. Dec. 773, in which Pearson, C.J., says that the plea by the defendant in partition of non tenent insimul is the plea of sole seisin, and that this raises the general issue, and this is followed by Wright v. McCormick, 69 N.C. 15, in which the same judge says: "The plea of 'sole seisin must be put in before the order for partition is made, otherwise it is waived, and the parties are for the purposes of the proceeding taken to be seised as tenants in common." In another case--Huneycutt v. Brooks, 116 N.C. 792, 21 S.E. 558--Furches, J., says: "Plaintiffs allege that they are tenants in common with defendants in said lands. The said defendants answer and deny that plaintiffs are the owners of the lands mentioned in their complaint, and plead 'non tenent insimul' (sole seisin in themselves), which is the 'general issue' in a proceeding for partition." And in Graves v. Barrett, 126 N.C. 269, 35 S.E. 539, the present Chief Justice makes substantially the same statement: "But in a petition for partition title is not in issue, unless the defendants put it in issue by pleading 'sole seisin."' In Purvis v. Wilson and in Huneycutt v. Brooks sole seisin was pleaded, and the question of the effect of the denial of the allegation that the petitioner and the defendant were tenants in common was not raised. In Wright v. McCormick it does not appear that the defendant denied the tenancy in common, and in Graves v. Barrett there was no plea of sole seisin, and the court approved the proceeding in which issues were submitted to the jury upon a denial...