Rostan v. Huggins
| Decision Date | 01 November 1939 |
| Docket Number | 310. |
| Citation | 5 S.E.2d 162,216 N.C. 386 |
| Parties | ROSTAN v. HUGGINS. |
| Court | North Carolina Supreme Court |
The facts set forth in the complaint and admitted by the demurrer are briefly as follows: The plaintiff purchased a tract of land from the heirs at law of Corrinna Berry Crees on December 19, 1936, which tract of land had been allotted to the said Corrinna Berry Crees in a special partition proceeding on the 10th day of November, 1932. Prior to the institution of the partition proceeding between the two tenants in common, Corrinna Berry Crees and Wilson W. Berry the co-tenant, Wilson W. Berry, on the 16th of May, 1939 made, executed and delivered to the defendant a mortgage deed purporting to convey a one-half undivided interest in the common property of six and one-half acres and nine poles. The mortgagee (defendant) was not made a party to the special proceeding for partition. The Commissioners appointed in the partition proceedings allotted to the predecessor in title Corrinna Berry Crees, the tract of land described in Section 2 of the complaint, and allotted to the defendant mortgagor Wilson W. Berry, approximately two and one-half acres. Defendant, under the terms of her mortgage, advertised for sale a one-half undivided interest in the six and one-half acres and nine poles tract, of which tract the plaintiff had purchased four acres, and the defendant was restrained from selling said undivided interest for the reason that it would operate as a cloud upon the title of the plaintiff.
The Court below rendered the following judgment:
To the signing of the foregoing order and judgment overruling the demurrer and continuing the restraining order to the hearing, the defendant excepted, assigned error and appealed to the Supreme Court. Other necessary facts will be set forth in the opinion.
M. M. Redden, of Hendersonville, for appellant.
Ervin & Butler, of Morganton, for appellee.
The prayer of plaintiff is for a restraining order and permanent injunction to remove a cloud on the title of certain lands of plaintiff. The demurrer of defendant to the complaint, in part, is as follow: "The defendant demurs to the complaint of the plaintiff for that said complaint has not alleged sufficient facts to constitute a cause of action against the defendant, in that it appears upon the face of the complaint: That at the time of the partition proceedings alleged in the complaint the defendant was the owner of a valid and outstanding mortgage deed, executed by a tenant-incommon, conveying an undivided interest in said property, and that the defendant, as mortgagee, had no notice of, or was not made a party to, the partition proceedings, and that said mortgage deed was duly recorded in Burke County prior to the institution of said proceedings," etc.
The Court below overruled the demurrer and continued the restraining order to the hearing. In this we can see no error. We think the action will lie.
N.C.Code 1935 (Michie), Sec. 1743, in part, is as follows: "Titles quieted.--An action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claims," etc. Vick v. Winslow, 209 N.C. 540, 542, 183 S.E. 750.
Corrinna Berry Crees and Wilson W. Berry owned a small tract of land, six and one-half acres and nine poles, as tenants in common. In a special proceeding for partition, Corrinna Berry Crees and husband Henry Crees against Wilson W. Berry, on November 10, 1932, four acres of the tract were allotted to Corrinna Berry Crees. Plaintiff obtained this land through a deed made by Russell Berry, Commissioner in a special proceeding by the heirs of Corrinna Berry Crees, dated December 19, 1936. On May 16, 1929, Wilson W. Berry made, executed and delivered to the defendant a mortgage deed purporting to convey a one-half undivided interest in the common property of six and one-half acres and nine poles.
The main question involved in this controversy: Is the mortgagee of one tenant in common a necessary party to a proceeding for partition among tenants in common when the mortgage in question is executed by one tenant in common for his individual indebtedness upon an undivided interest in the common property? We think not.
When the defendant took her mortgage for a one-half interest in the common property, May 16, 1929, the following statutes were in effect:
N.C.Code, supra, Sec. 3215: "One or more persons claiming real estate as joint tenants or tenants in common may have partition by petition to the superior court."
Sec. 3219; in part: "The superior court shall appoint three disinterested commissioners to divide and apportion such real estate, or so much thereof as the court may deem best, among the several tenants in common, or joint tenants."
A partition was had between the tenants in common whose land is involved in this controversy.
It is well settled that pertinent public statutes enter into and form a part of a contract as if they were expressly referred to or incorporated in its terms. At least such contracts must be understood to have been made in contemplation of the law. Bateman v. Sterrett, 201 N.C. 59, 62, 159 S.E. 14; Spain v. Hines, 214 N.C. 432, 437, 200 S.E. 25. Tenants in common are allowed to partition their lands and the statute was in effect when defendant took her mortgage. Her rights were subordinate to the statute and her mortgage attached to the land of her mortgagor, tenant in common after it was regularly allotted under the statute. She is bound by a special proceeding for division of lands by partition among tenants in common when not a party to the proceeding and had no notice thereof.
In Barber v. Barber, ...
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