Southern State Bank v. Leverette

• Decision Date: 21 May 1924
• Docket Number: 511.
• Citation: 123 S.E. 68,187 N.C. 743
• Parties: SOUTHERN STATE BANK v. LEVERETTE ET AL.
• Court: North Carolina Supreme Court

123 S.E. 68

187 N.C. 743

SOUTHERN STATE BANK v. LEVERETTE ET AL.

No. 511.

Supreme Court of North Carolina

May 21, 1924

Appeal from Superior Court, Henderson County; Ray, Judge.

Partition by the Southern State Bank against Bettie Leverette and others. Decree of partition, and from judgment affirming order issuing writ of assistance, defendant Mrs. L. A. Sumner appeals. Modified and affirmed.

Under the Constitution, limiting the powers of the clerk of the superior court to those imposed by statute, he has no chancery powers.

D. L English, of Brevard, and O. K. Bennett, of Asheville, for appellant.

T. J Rickman, of Asheville, and Shipman & Justice, of Hendersonville, for appellee.

ADAMS J.

In 1899 M. L. Sumner, seized of a tract of land, died intestate leaving surviving him the defendant L. A. Sumner as his widow and the defendant Bettie Leverette and seven other children as his heirs at law. After the intestate's death the plaintiff acquired the title of all the heirs except Bettie Leverette and brought a proceeding before the clerk of the superior court for partition, alleging that she and the plaintiff were tenants in common, subject to the widow's right of dower. Only the widow filed an answer. The clerk transferred the case to the civil docket for the trial of issues alleged to have been raised by the pleadings, but upon appeal Judge Bryson reversed the order of the clerk and remanded the cause for further proceedings. In their brief the appellant's counsel practically admit that the judge's order was free from error. When the case was remanded the clerk decreed the partition of the land and the assignment of dower. The commissioners assigned dower to the widow, and allotted to the plaintiff and to Bettie Leverette their respective portions of the land described in the petition. The report of the commissioners was approved and confirmed. The appellant did not except to the order appointing the commissioners, or to their report, or to the decree of confirmation. The report was confirmed on May 17 1923, and in June the plaintiff applied to the clerk for a writ of assistance based upon an affidavit. An alias notice to the appellants to show cause why the writ should not be granted was duly issued, and on August 16 returned served. The appellant entered a special appearance and moved to dismiss the motion, and after noting an exception filed a written answer to the notice. The clerk held that the writ should issue, and his judgment was affirmed on appeal to Judge Ray. The widow excepted, and appealed to this court.

The appellant admits that the partition of the land and the allotment of dower were not "resisted strenuously," but she says the writ of assistance is resisted on the ground that the appellant is in possession of all the land described in the petition under a lease from one of the tenants in common. In her answer to the original petition the appellant alleged that she held a lease dated August 2, 1921, from one of the tenants in common for the land described in the petition, and that it would not expire until August 2, 1926. If the lease was pleaded in bar of partition it seems not to have been relied on, for it was not referred to again until after the plaintiff had applied for the writ of assistance. Without regard to the alleged right of one of several tenants in common to execute a lease upon the common property, we are confronted with uncertainty and indefiniteness as to the execution of the lease, as to its contents, as to the name of lessor, and as to the question whether it was executed before or after the plaintiff acquired its title. If the lease was executed by Bettie Leverette, as stated in one of the briefs, would its operation not be confined in any event to her interest? And as her interest has been allotted by metes and bounds in what way could her lease to the appellant be effective against the land allotted to the plaintiff? Besides, on an application for a writ of assistance the title cannot be adjudicated, or the original case reviewed, or the decree modified. Investment Co. v. Tel. Co., 156 N.C. 259, 72 S.E. 361, Ann. Cas. 1913A, 224; Exum v. Baker, 115 N.C. 252, 20 S.E. 448, 44 Am. St. Rep. 449; Roberts v. Dale, 171 N.C. 466, 88 S.E. 778; 27 Cyc. 1142(3); 30 Cyc. 211; 7 R. C. L. 885 (80); 5 C.J. 1322 (13) and 1325 (22).

But the appellant presents a more serious question. She contends that a writ of assistance may be issued only by a court of chancery, and that the clerk who signed the decree had no equitable jurisdiction. This writ is of remote origin, dating as far back as the reign of Henry VIII. It has been defined as a form of process issued by a court of equity to transfer the possession of lands, the title or right of possession to which it has previously adjudicated, as a means of enforcing its decree. See authorities cited in Ann Cas. 1913D, 1120, note. In 2 Beach's Modern Equity Practice, § 897, it is said:

"Courts of equity have from the earliest times exercised the right to issue a writ of assistance in actions in equity brought for the purpose of determining the rights of the litigants to the title or possession of real estate after judgment declaring such rights, as well as in cases for the foreclosure or redemption of mortgages. In such cases the courts having jurisdiction of the persons and property in controversy have, after determining the rights of the parties litigant to the title or possession of real estate, rightfully assumed the power to enforce their judgments by the writ of assistance to transfer the possession instead of turning the party over to a court of law to recover such possession."

Mr. Justice Ashe remarked that the writ may be termed an equitable habere facias possessionem, for it is issued only from courts of chancery (Knight v. Houghtalling, 94 N.C. 408), and all the subsequent decisions have treated the writ as issuable only from a court of equity (Coor v. Smith, 107 N.C. 430, 11 S.E. 1089; Exum v. Baker, 115 N.C. 242, 20 S.E. 448, 44 Am. St. Rep. 449; Piedmont Wagon Co. v. Byrd, 119 N.C. 460, 26 S.E. 144; Clarke v. Aldridge, 162 N.C. 326, 78 S.E. 216; Lee v. Thornton, 176 N.C. 208, 97 S.E. 23.

As the writ can issue only from a court of chancery, the next question is whether the clerk in the proceeding before him had equity jurisdiction.

At common law coparceners were entitled to partition; upon tenants in common the right was conferred by statute. 2 Bl. 189, 194; Holmes v. Holmes, 55 N.C. 334. But the English courts of chancery also entertained suits for partition, and in this country the several state courts possessing general equity powers are regarded as having jurisdiction unless their authority has been abrogated or restricted by statute. 30 Cyc. 170. Prior to 1868 both our courts of equity and our courts of law entertained such suits. Chief Justice Ruffin said:

"The right of a tenant in common to partition of a legal estate is as absolute in this court as it is at law; for the jurisdiction as to actual partition is concurrent in the courts of law and equity, and therefore both courts must adjudicate on the same principle. The only necessity a tenant in common is under, for coming into the court of equity, is that which arises from the inconvenience of an actual partition, and induces him to apply for a sale." Donnell v. Mateer, 42 N.C. 94.

See, also, Weeks v. Weeks, 40 N.C. 111, 119, 47 Am. Dec. 358. But since 1868 partition has been regulated by statute. Haddock v. Stocks, 167 N.C. 70, 83 S.E. 9; C. S. § 3213 et seq. The proceeding is now brought before the clerk, but the clerk has not been given the powers of a court of chancery. He has "no equity jurisdiction; and besides, the statute giving jurisdiction to courts of equity over sales for partition has been repealed by §§ 1903 and 1904 of the Code [C. S. 3233, 3241], which confers that jurisdiction upon the superior courts to be exercised by the clerk, who is not vested with any equity powers, except where specially conferred by statute." Ashe, J., in Bragg v. Lyon, 93 N.C. 151, which is approved in Vance v. Vance, 118 N.C. 865, 24 S.E. 768, and in McCauley v. McCauley, 122 N.C. 289, 30 S.E. 344.

From this position the court has never receded. In a few decisions may be found isolated dicta suggesting that the clerk and justices of the peace may affirmatively exercise the functions of a court of equity, but the suggestion runs counter to several decisions, and is not in accord with the doctrine long since declared by the court and thence consistently maintained. The provision of the Constitution of 1868 prescribing the jurisdiction of a clerk of the superior court was purposely omitted by the convention of 1875, and the clerk's duties now are chiefly such as are imposed by statute. Brittain v. Mull, 91 N.C. 499.

The appellee contends, however, that by...