Talley v. Murchison

• Decision Date: 13 October 1937
• Docket Number: 245.
• Citation: 193 S.E. 148,212 N.C. 205
• Parties: TALLEY v. MURCHISON et al.
• Court: North Carolina Supreme Court

193 S.E. 148

212 N.C. 205

TALLEY v. MURCHISON et al.

No. 245.

Supreme Court of North Carolina

October 13, 1937

Appeal from Superior Court, Harnett County; W. C. Harris, Judge.

Action by W. M. Talley against Betsy Ann Murchison and others wherein Sallie Ann Shyne was an additional party defendant. Judgment for plaintiff, and defendant Plummer Murchison appeals.

Affirmed.

This is a civil action commenced before the clerk on petition for the partition of land, filed February 22, 1937. Plaintiff alleged he was a tenant in common with defendants and seized in fee simple and in possession of one-seventh interest in 37 1/2 acres of land, less 3 acres, describing same. That the other defendants, including Plummer Murchison, owned one-seventh interest, and prayed: "That the Court will appoint some competent person to sell said lands after due advertisement to the highest bidder, for cash, and report his proceedings in regard to said sale within ten days after sale into the office of the Court."

Upon answer being filed by the defendant Plummer Murchison denying the material allegations of the petition, the case was transferred under the statute to the civil issue docket of the superior court for trial by the court and a jury at term. The case was tried at June term, 1937, before Harris, J., and a jury, and, from a verdict and judgment thereon in favor of the plaintiff, the defendant Plummer Murchison excepted assigned errors, and appealed to the Supreme Court.

The issue submitted to the jury and their answer thereto, were as follows: "Is the plaintiff, W. M. Talley, a tenant in common with the defendants in the land described in the complaint? Answer: Yes."

Godwin & Guy, of Dunn, for appellant Plummer Murchison.

J. R Hood, of Lillington, for appellee.

CLARKSON Justice.

This is an action for partition. In Barber v. Barber, 195 N.C. 711, 712, 713, 143 S.E. 469, 470, it is said: "A tenant in common is entitled as a matter of right to partition of the land held in common, to the end that he may have and enjoy his share therein in severalty. Foster v. Williams, 182 N.C. 632, 109 S.E. 834; Haddock v. Stocks, 167 N.C. 70, 83 S.E. 9; Holmes v. Holmes, 55 N.C. 334. Whether or not, in a proceeding instituted under C.S. § 3215, for partition of land, held by two or more persons as tenants in common, between or among such persons there shall be an actual partition, or a sale for partition, as authorized by statute, involves a question of fact to be determined by the court. The statute provides that, if it shall appear 'by satisfactory proof that an actual partition of the lands cannot be made without injury to some or all of the parties interested, the court shall order a sale of the property described in the petition, or any part thereof.' C.S. § 3233. When one tenant in common prays in his petition that the land be sold for partition, upon an allegation that an actual partition cannot be made without injury to some or all of the parties interested in the land, and the allegation is denied, no issue of fact is raised thereby, to be submitted to and passed upon by a jury. Vanderbilt v. Roberts, 162 N.C. 273, 78 S.E. 156; Tayloe v. Carrow, 156 N.C. [6], 8, 72 S.E. 76; Ledbetter v. Pinner, 120 N.C. 455, 27 S.E. 123."

None of the defendants filed answer except Plummer Murchison, who dened the material allegations of the petition. Plummer Murchison's statement of the question involved is "Can a petitioner alleging ownership of an undivided one-seventh interest in 37 1/2 acres of land for sale for division, on one of the tenants in common filing answer denying title and tenancy in common in the petitioner, make out a case sufficient to be submitted to the jury, without first proving title, possession and joint tenancy, as in case of ejectment?" In a partition proceeding, unless sole seizin is pleaded, the petitioner is not required to prove title out of the state, or adverse possession for 20 years, or 7 years colorable title, or title from common source by estoppel. Murchison did not plead sole seizin and the very question is decided against him in Graves v. Barrett, 126 N.C. 267, 35 S.E. 539. It is said, 126 N.C. 267, at pages 269, 270, 35 S.E. 539, 540: "But in a petition for partition title is not in issue unless the defendants put it in issue by pleading sole seizin. That...