Tayloe v. Carrow

• Decision Date: 13 September 1911
• Citation: 72 S.E. 76,156 N.C. 6
• Parties: TAYLOE v. CARROW et al.
• Court: North Carolina Supreme Court

72 S.E. 76

156 N.C. 6

TAYLOE v. CARROW et al.

Supreme Court of North Carolina

September 13, 1911

Appeal from Superior Court, Beaufort County; Ward, Judge.

Action by Joseph F. Tayloe against Annie H. Carrow and others for the partition of land. From a decree of partition by sale the named defendant appeals. Affirmed.

That separate appeals from the determination of the clerk as to partition or sale go up to different judges of the superior court does not prevent a judge hearing a second or subsequent appeal from a decree of sale of the whole tract, though another judge has on a former appeal ordered an actual allotment of a part; such order being interlocutory.

Nicholson & Daniel, for appellant.

W. C Rodman and Small, MacLean & McMullan, for appellee Tayloe. Martin & Critcher, for appellee Godwin.

CLARK C.J.

This is a petition for sale of land for partition; the plaintiff alleging that the land was not susceptible of actual partition. Some of the defendants answered, asking that the land be actually divided. The clerk made an order directing actual partition and appointing commissioners. To this order the petitioner and certain of the defendants excepted. The commissioners attempted to make actual partition, and filed a report; but two of them reported further that, owing to the shape, area, and topography of the land, the best interest of all the parties would be subserved by a sale. This the clerk overruled, and confirmed the report. Upon appeal to the judge the partition was set aside, and the commissioners were directed to set apart and allot one-seventh in value of the land to the defendant Annie Carrow (who alone insisted on actual partition), and ordered a sale of the remainder for partition. The second set of commissioners made their report which was confirmed by the clerk; but on appeal the judge set aside the report of the commissioners and directed that the entire property be sold for partition, finding as a fact that this property could not be fairly divided and that a sale would best subserve the interests of all parties. In Ledbetter v. Pinner, 120 N.C. 455, 27 S.E. 123, the court said: "The only controverted fact arising on the pleadings was as to the advisability of a sale for partition or an actual partition. This was not an issue of fact, but a question of fact for the decision of the clerk in the first instance, subject to review by the judge on appeal."

This action of the judge in setting aside the report and ordering a sale is not reviewable, unless there is an error of law committed. In Simmons v. Foscue, 81 N.C. 86, the court said: "Of the force and effect of the evidence in inducing the exercise of that reasonable discretion reposed by law in the judge when called on to confirm the action of the commissioners, he alone must determine, and if no error in law was committed we cannot reverse his decision." This has been cited and approved. Trull v. Rice, 92 N.C. 572; McMillan v. McMillan, 123 N.C. 577, 31 S.E. 729.

The appellant, Annie Carrow, insists that error in law was committed, in that the judge, having decreed actual allotment to her of one-seventh and a sale of the remainder, the matter was res judicata, and he could not, upon setting aside the report, decree a sale of the part allotted to her. Revisal 1905, § 2516, authorizes the judge to decree actual partition of a part of the land and a sale of the remainder; but his decree to that effect is interlocutory, as much so as the decree for the sale of the remainder....