Hinnant v. Wilder

• Decision Date: 08 March 1898
• Citation: 29 S.E. 221,122 N.C. 149
• Parties: HINNANT et al. v. WILDER.
• Court: North Carolina Supreme Court

29 S.E. 221

122 N.C. 149

HINNANT et al. v. WILDER.

Supreme Court of North Carolina

March 8, 1898

Appeal from superior court, Wilson county; Timberlake, Judge.

Action by Mary E. Hinnant and others against Ishmael Wilder to recover certain land. From a judgment for plaintiffs defendant appeals. Reversed.

H. G Connor, for appellant.

F. A Woodard, for appellees.

FAIRCLOTH C.J.

In 1874 tenants in common filed an ex parte petition for partition, which was duly made, and one part was assigned in severalty, and confirmed to plaintiffs' ancestor, who is now dead. In the decree of confirmation it was ordered "that the costs of said proceeding and partition was adjudged to be paid by the said petitioners in equal parts." Plaintiffs' ancestor failed to pay the amount $10.50, adjudged against her; and an execution issued, and the share allotted to her was sold by the sheriff, and purchased by Teasley, who conveyed the same to defendant, who is in possession. No homestead was allotted by the sheriff to plaintiffs' ancestor, who owned no other land, and this tract was not worth $1,000.

Are the plaintiffs the owners, and entitled to recover? The question is a new one in our state, and the counsel of neither party was able to furnish any authority in this or any other state. We must therefore proceed on the "reason of the thing" and such analogies as we have. Code, § 1902 provides, in partition, that the compensation of the commissioners, allowances to parties, the expenses incurred for surveying, and all fees and costs of the proceeding, shall be paid as the court may direct. The rule governing costs on actions on contract or other evidence of debt, in which one party recovers cost against another, has no application here. In partition proceedings the court does not proceed in personam, but in rem. In fact, it cannot proceed at all if the title or litigated rights are in dispute until those questions are judicially determined. The property is the debtor to the extent of any charge put upon it. Originally, no cost was allowed in partition; but that rule yielded to the common sense of the country, and the rule was adopted of taxing the cost "equally," without regard to the interest or estate of the parties. This rule was shaken by the court in Hyde v. Hindly, 2 Cox, Ch. 408, and the result was statutory regulations, such as we have in our Code and Acts 1887, cc. 214, 284. The general rule now is to apportion the costs according to the value of the interest of the respective parties. It may be noted that equity jurisdiction is not purely litigious, as at common law, but is often protective and administrative, and in those instances the costs of the cause may be different. Under the protective and administrative branch, it would seem to be a wholesome principle that the party needing and asking for aid should be liable for the costs necessarily incurred in granting his request. A tenant in common cannot convey his estate by metes and bounds, nor have his homestead allotted, until his property has been assigned in severalty; and this he prays the court to do. The partition decree conveys no estate, but only serves to indicate where it is, and to relieve it from the status of a community of interest; and the same may be said of the homesteader's rights. When partition is effected by sale, the money comes...