38 N.C. 131 | N.C. | 1843
The bill was filed in August, 1841, for the partition of a tract of land, described in the pleadings. One William White, the defendant's father, being seized of the land in fee, devised it by his will, dated 16 April, 1823, to his wife Asha White for term of her life, with remainder after her death to the testator's two sons, Solomon White and William White, the defendants, equally to be divided between them. The bill states that Solomon White sold and conveyed his undivided moiety in remainder to Joseph Garrett on 16 August, 1831, and that Joseph Garrett devised it to the plaintiff, then the wife of the said Joseph, and died, in 1835; that Asha White, the tenant for life, had lately died, and that William White had then entered into the actual possession of the land, and held it in common for himself and the plaintiff; that the plaintiff had applied to him to make an equal partition with her, but that he refused, on the (132) pretense that Asha White had let the public taxes due upon the land for 1837 be in arrear, and that, during her lifetime, to wit, on 4 July, 1839, the said land was duly set up by the sheriff for sale for the taxes, viz, $6.21, and that the said William became the purchaser of 219 acres, part of the said tract, for the taxes due on the whole, and took a deed therefor. The bill further states that the transactions thus pretended took place without the plaintiff's knowledge, and that, after being informed thereof, she offered to pay the defendant one-half of the sum he had *101 paid and all the expenses by him incurred, and requested to be let into actual possession with him and that he would release to her one-half of the land; and the bill charges that, if the defendant's purchase for the taxes and the sheriff's deed of conveyance should give him a good title at law, yet that in equity she is entitled equally with him upon a proper indemnity for the moneys he has laid out; and it prays a decree for the partition and conveyances accordingly.
The answer admits the devises by William White, the father, as stated in the bill; and also the conveyance from Solomon White to the plaintiff's husband, Joseph Garrett. But it states that, although the latter is in form an absolute conveyance, yet that there was an understanding between Solomon White and Garrett that the former might redeem; though upon what terms is not stated. The answer further states that the defendant, at a public sale by the sheriff for the taxes due thereon, purchased a portion of the said land and paid the price and took a deed in conformity to the acts of Assembly, in the lifetime of Asha White, and with a view to gain to himself the further title to the same; that the estate of Asha White is sufficient to make good the land to the plaintiff; and that the defendant does not believe the plaintiff was ignorant of the sale for taxes, and that she did not offer to refund to him the money paid by him or any part of it. The answer then denies that the defendant is in law, or ought to be considered in equity, a tenant in common with the plaintiff; and insists that he took possession, under the deed to him from the sheriff, as sole tenant of the land, and claimed so to be (133) when the plaintiff filed his bill and long before, and cultivated the same under his said claim for his own benefit, without being in any manner accountable to the plaintiff.
There was a replication, depositions were taken, and the cause set for hearing and sent to the Supreme Court to be heard. The defendant has given some evidence of declarations of Joseph Garrett, expressing a willingness that Solomon White, or either of his brothers, might repurchase the land; but nothing like an obligatory agreement for redemption is established — even if that could be entered into between these parties.
The title to the plaintiff seems, therefore, to be clear as a *102
legal title, to the undivided moiety of the whole tract, except so far as a title to a part of it may have been lost by the purchase of the defendant for taxes. For the residue of the tract, not sold for taxes, the plaintiff's title is unquestionable; and she has a right to partition at least of that part, since the sole seizin or adverse possession, insisted on by the defendant, extends no farther, as we understand him, than the 219 acres included in the sheriff's deed. But as that residue is only 20 or 30 acres, the Court does not think proper to decree partition of that by itself, until it be seen, whether the plaintiff yet has the right at law, or in equity to a share of the part claimed exclusively by the defendant. Upon that point the onus is on the defendant to shew the plaintiff's estate to be divested. If this Court were to pass on his proofs, we could but pronounce them insufficient in the present state of them. They consist only of a plot of survey, dated 22 December, 1840, and purporting to be made by Samuel Newberry, the County Surveyor of Washington, shewing the boundaries of 219 acres of land surveyed for William White, which he purchased for taxes, and taken from the tract of land given in by (134) Asha White, there being in said tract 257
PER CURIAM. ORDERED ACCORDINGLY.
Cited: Ramsey v. Bell, post, 212; Weeks v. Weeks,
(136)