| N.C. | Aug 5, 1850
Richard Lewis died, seized of lands in fee, which descended to his five children, of whom his daughter, Mary, married John McDowell. In May, 1840, a suit was instituted between the heirs for partition; and a decree was made therein for a sale of the land by the Clerk and Master for the purpose of partition. The sale was made, reported and confirmed, and the Master was ordered to collect the purchase money; and it was decreed that the costs of the suit should be paid thereout, and that one-fifth part of the residue should then be paid to each of the parties, as and for his or her share thereof. The master collected the money and made various payments to the several heirs; but there remained in the office a part of the money, in May, 1849. McDowell then filed a petition in the cause, setting forth that he had *14 paid taxes on the land descended, and the costs of two suits at law with third persons in respect to a part of the lands, to the amount of $161.19, and that all the other parties reside out of the State; and praying that the same may be held to be a charge on the fund in the court and ordered to be paid thereout. It is therefore ordered, that the master should make no further distribution of the money, and the master was directed to inquire what sum was due to McDowell in the premises. He reported the sum claimed as above, and in November, 1849, the report was confirmed, and an order made for payment out of the fund in court, from which an appeal was allowed to the other side. The demand is not for costs or expenditures in the partition suit, in which case it ought to be satisfied under the original decree. But it is for other advances, made by one of the tenants, on account of the estate held in common; and there is no doubt that for such advances, he has a just claim against his cotenants, and, also, that in equity he might have looked to the estate for his indemnity, if duly asked for, in apt time. That might have been done in the bill for partition, and the claim would have been provided for, either out of the profits of the estate or the proceeds of the sale or probably, the party might have moved for an inquiry and gone before the master, at any time before the fund had been disposed of by the court. But, as the case stood when the partition was filed, the fund was beyond the reach of the party — at least, in this method of proceeding. The estate was no longer in common, but had been divided and allotted in severally, or, which is the same thing, it had been sold and the proceeds divided or ordered to be distributed in certain proportions and ascertained sums. This demand was not, then, against a common fund, but against the respective tenants in common for their several shares; and, of course, it no more attached upon this fund, than any other debt of one or more of the persons, who are the heirs. It was argued, that, as a portion of the money has not actually been distributed, but remains in the office, the court may properly lay hold of it, for the satisfaction of this one of the former co-tenants. But the objection seems to be decisive, that it cannot be done, without flying in the face of the decree hitherto made; and, indeed, the first step taken on the petition, and unavoidably taken, was to order the master to violate that decree, by not making the distribution and payments therein directed. The first decree was thus left in full force, and, at the same time, it was contradicted and to be disobeyed by the order of the court *15 — which is not allowable. It could be put out of the way only by reversing it upon a proper proceeding, which is not attempted here. Indeed, there is no ground for reversing it, since the matters now brought forward were not then presented to the court, and most of the claim is, in fact, for the payments made since the decree. Under those circumstances, the court cannot arrest the execution of the decree, or otherwise interfere in that cause between the parties, and the order appealed from was consequently erroneous, and it must be so certified. The petitioner, McDowell, must pay the costs in this court.
PER CURIAM. Affirmed.
(6)