55 N.C. 502 | N.C. | 1856
Both parties entered upon their allotted portions, and held for the space of nine years, during which time for six years there was no challenge or disturbance of each others rights; afterwards, however, about three years ago, the defendant filed a petition in the Court of Equity for the sale of the whole tract for partition, which is still pending, and is the other case named above. Before this was done each was entirely ignorant of any deficiency in their respective titles, or that any deed or other conveyance was necessary to complete them. The plaintiff alleges, that after finding out the necessity of doing so, before filing this bill, he offered to make a proper conveyance in fee of (504) his interest in the nine elevenths which the defendant had got, and called on him to convey the nine elevenths of the part assigned to plaintiff, which he refused to do.
The plaintiff says in his bill, that a sale of the property will be extremely prejudicial to him, as he has put expensive improvements on the part allotted to him, under the belief that his title was good. The rest of the heirs-at-law of Thomas Jones are made parties defendant.
The prayer of the first bill is for a specific performance of the contract of partition by decreeing that each party shall execute title according to the written agreement, and according to their occupation in pursuance thereof.
The answer of the defendant admits the contract and possession according to it, but says, in reply, that he is not able to make title to two *415 elevenths; that one of these belongs to the heirs of Mrs. Lance, who died before he was able to procure title from her, although her husband had given bond to make him a title to her part; and another eleventh belongs to his wife.
The prayer of the bill in the second case is for a sale of the land for partition. These two cases were heard at the same time, as they relate to the same tract of land. We are satisfied from the evidence, that Jones and Carland executed a written agreement to make partition of the land; Jones to have two parts out of eleven, and Carland nine parts; that a dividing line was accordingly run, and that the parties have held possession of their respective parts, in severalty, ever since.
At the time of the partition, the parties did not execute deeds, and Jones now calls on Carland for a specific performance of the agreement to make partition, and the execution of the necessary title-deeds. To this, Carland replies, that he is notable to perform his part of the contract; for that he owns only seven parts, out of eleven, of the land; that his wife owns one part, and the other part belongs to (505) the heirs-at-law of Mrs. Lance, who died before he was able to procure the title, although her husband had given bond to make title. The excuse offered by Carland for not performing his part of the contract, comes with a very ill grace, after the parties have acted upon the contract, and been in possession under it, for so many years, and made expensive improvements. In Love v. Camp,
Whether the principle of that case is applicable to the present one, we will not now decide; because it is suggested that, by a decree for a partition in the case of Carland v. Jones, the commissioners may, in their discretion, and with due regard to the rights of all the parties concerned, allot to Jones, the two parts of which he is now in possession, or allot them to Carland, so as to enable him to comply with his contract, and put an end to the controversy with Jones. The report of the clerk and master, as to whether the interest of the parties requires a sale of the land for partition, is not at all satisfactory, and we feel *416 at liberty, therefore, to act upon the suggestion, and to order a partition of the land, to be made by commissioners, so as to give Jones two parts, Carland, in his own right, seven parts, Carland and wife, one part, and the heirs of Lance the other part.
The case of Carland and Jones will be retained for further directions.
The commissioners will be directed to accompany their report, with a full statement of facts, so as to enable the Court to decide, whether any prejudice will be sustained by the heirs of Lance, by the order for actual partition.
Per curiam.
Decree accordingly.
Cited: Pope v. Whitehead,