Purvis v. Wilson

• Decision Date: 31 December 1857
• Citation: 69 Am.Dec. 773,50 N.C. 22,5 Jones 22
• Court: North Carolina Supreme Court
• Parties: HENRY H. PURVIS AND WIFE v. JOHN WILSON.

5 Jones (NC) 22

50 N.C. 22

69 Am.Dec. 773

HENRY H. PURVIS AND WIFE

v.JOHN WILSON.

Supreme Court of North Carolina.

December Term, 1857.

In a petition for a partition of land, in a court of law, where the defendant denies the tenancy in common by a plea of sole seisin in himself, the proper course is for the court to try the question of title thus raised, and not to force the plaintiff to resort to an action of ejectment for that purpose.

THIS was a petition for the partition of land, tried before MANLY, J., at the last Fall Term of Bertie Superior Court.

The defendant pleaded to the petition that he had never been a tenant in common, of the land in question, with the petitioners or either of them, but that he had a sole seisin in the premises.

Upon the hearing of the petition and plea, the plaintiffs moved that the issue of title, made by the pleading, be submitted for trial to a jury, which was refused by his Honor, who ordered that the proceedings on the petition should be suspended until the question of title should be tried in an action of ejectment. From which decision the plaintiffs appealed.

Garrett and Barnes, for plaintiffs .

Winston, Jr., for defendant .

PEARSON, J.

Coparceners had a right to partition at common law; it was given to joint tenants, and tenants in common by statute. The remedy was in a court of common law by “writ of partition;” Fitzh. Nat. Bre. 256; Co. Litt. 169, a. n. 2. The inconveniences attending the mode of suing and having the partition made, induced the court of equity to assume a concurrent jurisdiction, but this did not affect the common law remedy; Holmes v. Holmes, 2 Jones' Eq. Rep. 334.

If the proceeding is in equity and the defendant denies the relation and avers a title in severalty, so as to put the title in issue, the court will not undertake to decide it, but will direct it to be tried by an action of ejectment, the defendant admitting an actual ouster, &c., and the plaintiff, after getting a judgment in that action, is entitled to a decree for partition. But if the proceeding is in a court of common law, and the defendant pleads “““ non tenent insimul” (sole seisin in himself) which is the “general issue” in the action for partition, Com. Dig. Pleader, 3 F. 3, Boothe on Real Actions, 246, the issue joined upon that plea is tried like other issues, and if found in favor of the plaintiff, there is judgment that partition be made.

The suggestion that when the defendant pleads “sole seisin,” the plaintiff cannot proceed in his action, and is put to the necessity of bringing another action, has nothing to sustain it. The court is just as competent to determine the question of title in an action for partition as it is in an action of ejectment, and it involves an absurdity to suppose that a defendant, by simply pleading the general issue, can, without a trial, defeat the action and force the plaintiff to institute another action to be tried before the same court.

It was insisted on the argument, in support of this suggestion, that although at common law the “general issue” in an action for partition was tried like other issues, yet the statute, Rev. Code, ch. 82, sec. 1, has the effect of introducing this anomolous mode of proceeding. The statute provides that “the Superior and County Courts and Courts...