Medlin v. Steele

• Decision Date: 30 June 1876
• Citation: 75 N.C. 154
• Court: North Carolina Supreme Court
• Parties: ERVIN MEDLIN v. W. C. STEELE.

75 N.C. 154

ERVIN MEDLIN

v.W. C. STEELE.

Supreme Court of North Carolina.

June Term, 1876.

A contract between tenants in common for the partition of lands, is a contract concerning realty, within the purview of the statute of Frauds, Bat. Rev., chap. 50, sec. 10: and in order to be valid must be in writing, and signed by the party to be charged, &c.

Where A and B, tenants in common, agreed to make partition of lands and fix the boundaries, and A agreed that B should occupy the whole and pay to him a portion of the crop raised thereon: It was held, that although this was valid as an agreement for a year, it did not constitute a lease, so as to create the relation of landlord and tenant, under chap. 64, Bat. Rev., between the parties.

(The case of Anders v. Anders, 3 Dev. 529, cited and approved.)

SUMMARY PROCEEDING, in the nature of Ejectment, under the Landlord and Tenact Act, heard before BUXTON, J., at Spring Term, 1876, of UNION Superior Court, upon appeal from a Court of a Justice of the Peace.

The facts necessary to an understanding of the case as decided are stated in the opinion of the Court.

There was judgment for the plaintiff and the defendant appealed.

Wilson & Son, for appellant .

Dowd, contra .

RODMAN, J.

This action was commenced before a Justice of the Peace under sec. 19, &c., of the Landlord and Tenant Act, Bat. Rev., chap. 64. This section says in substance: Sec. 19. Any lessee who shall continue in possession of the demised premises without permission of the landlord, may be removed as hereinafter prescribed.

1. When his time has expired, &c. Sec. 20 gives jurisdiction in such cases to a Justice of the Peace, on application by the lessor or his assigns. In the present case the defendant and his brother, J. C. Steele, were tenants in common of a piece of land, each being entitled to an undivided half. In the Spring of 1874 the co-tenants ran and marked a division line between them, but no writing was entered into. It was orally agreed between them that defendant should remain in possession of the whole land and pay to J. C. Steele one-fourth part of the crop which he should raise on the share orally assigned and laid off to J. C. Steele, as aforesaid. The defendant accordingly remained in possession of the whole land until March, 1875, when he surrendered possession of all but a small part of it to the plaintiff. On the 23d of March, 1874, J. C. Steele sold and conveyed the share of the land laid off to him as aforesaid to the plaintiff. The plaintiff had judgment in the Superior Court and the defendant appealed to this Court.

The first question is as to the effect of the oral partition between the two brothers. By section 10 of the well known statute of Frauds, Bat. Rev., chap. 50, “all contracts to sell or convey any lands, tenements or heriditaments, or any interest in or concerning them, shall be void and of no effect unless such contract, or some memorandum or note thereof, shall be put in writing and signed by the party to be charged therewith,” &c. A partition of lands clearly comes within this Act and the oral partition was,...