268 N.C. 14
N.C.
1966
Sharp, J.

This appeal presents only the question of nonsuit. All assignments of error with reference to the exclusion and admission of evidence have been abandoned. General rules governing involuntary termination on nonsuits in civil actions apply to special proceedings for partition. 68 C.J.S., Partition § 104 (1950). If the petitioner has no interest in the lands described in the petition, or no present right to partition, the proceeding is properly dismissed. Burchett v. Mason, 233 N.C. 306, 63 S.E. 2d 634. Cf. Haddock v. Stocks, 167 N.C. 70, 83 S.E. 9.

*19 • Prima facie, a tenant in common is entitled, as a matter of right, to a partition of the lands so that he may enjoy his share in severalty. G.S. 46-3; Brown v. Boger, 263 N.C. 248, 139 S.E. 2d 577; Seawell v. Seawell, 233 N.C. 735, 65 S.E. 2d 369. If, however, an actual partition cannot be made without injury to some or all of the parties interested, he is equally entitled to a partition by sale, G.S. 46-22; Coats v. Williams, 261 N.C. 692, 136 S.E. 2d 113, but the burden is on him who seeks a sale in lieu of actual partition to allege and prove the facts upon which the order of sale must rest. G.S. 46-22; Brown v. Boger, supra; Seawell v. Seawell, supra; Wolfe v. Galloway, 211 N.C. 361, 190 S.E. 213. The existence of a life estate is not, per se, “a bar to a sale for partition of the remainder or reversion thereof,” G.S. 46-23, since, for the purpose of partition, tenants in common are deemed seized and possessed as if no life estate existed. The actual possession of the life tenant, however, cannot be disturbed so long as it exists. Davis v. Griffin, 249 N.C. 26, 105 S.E. 2d 119; Moore v. Baker, 222 N.C. 736, 24 S.E. 2d 749.

While it is the general rule that a tenant in common may have partition as a matter of right, it is equally well established that a cotenant may, either by an express or implied contract, waive his right to partition for a reasonable time. When he does, partition will be denied him or his successors who take with notice. Mineral Co. v. Young, 220 N.C. 287, 17 S.E. 2d 119; Chadwick v. Blades, 210 N.C. 609, 188 S.E. 198; Rosenberg v. Rosenberg, 413 Ill. 343, 108 N.E. 2d 766; Seals v. Treatch, 282 Ill. 167, 118 N.E. 422; Appeal of Latshaw, 122 Pa. 142, 15 Atl. 676; Coleman v. Coleman, 19 Pa. St. 100, 57 Am. Dec. 641. See also Note, 15 N.C.L. Rev. 279 (1937); Annot., Partition — Contracts Against, 132 A.L.R. 666 (1941); 68 C.J.S., Partition § 44 (1950); 40 Am. Jur., Partition §§ 4-7 (1942); 2 Am. Law of Property § 6.26 (1952). In Mineral Co. v. Young, supra, this Court reversed an order of the Superior Court decreeing the division by sale of mineral rights which were subject to a lease, and a portion of which had been acquired by the lessee. The opinion quotes with approval from Arnold v. Arnold, 308 Ill. 365, 367-68, 139 N.E. 592, 593, as follows:

“ ‘It has been said in general terms that an adult tenant in common has an absolute right to partition (citing cases); but it has been in cases where there was neither an equitable nor legal objection to the exercise of the right, and partition was in accordance with the principles governing courts of equity. Whenever any interest inconsistent with partition has been involved, the general rule has always been qualified by the statement that equity will not award partition at the suit of one in *20 violation of his own agreement, or in violation of a condition or restriction imposed upon the estate by one from whom he claims, or where partition would be contrary to equitable principles. Partition will not be awarded in a court of equity, where there has been an agreement either not to partition, or where the agreement is such that it is necessary to secure the fulfillment of the agreement that there should not be a partition. Such an agreement may be verbal, if it has been acted upon, and it need not be expressed, but will be readily implied, and enforced, if necessary to the protection of the parties. (Citing cases.)’” 220 N.C. at 291-92, 17 S.E. 2d at 122.

In this State partition proceedings have been consistently held to be .equitable in nature, and the court has jurisdiction to adjust all equities in respect to the property. Allen v. Allen, 263 N.C. 496, 139 S.E. 2d 585; Brown v. Boger, supra; Roberts v. Barlowe, 260 N.C. 239, 132 S.E. 2d 483. Partition is always subject to the principle that he who seeks it by coming into equity for relief must do equity. 2 Am. Law of Property § 6.26 (1952). “'Equity will not award partition at the suit of one in violation of his own agreement or in violation of a condition or restriction imposed on. the estate by one through whom he claims. The objection to partition in such cases is in the nature of an estoppel.’ ” Chadwick v. Blades, supra at 612, 188 S.E. at 200. “The refusal of partition to one who has brought suit therefor in violation of his contract appears to bear a close analogy to the grant of specific performance of a contract.” 2 Tiffany, Real Property § 474 (3d Ed. 1939).

The separation agreement between Mr. and Mrs. Cox does not contain an express stipulation that Truitt Cox shall not partition the property. It is apparent, however, both from the instrument itself and from the circumstances surrounding its execution that neither party considered the possibility of partition during the life of Mrs. Cox. Mr. Cox’s goal was an absolute divorce. Mrs. Cox, suffering from a slowly progressive and eventually incapacitating disease, sought to secure a livelihood for herself and a place to live during the remainder of her life. Mr. Cox’s earning capacity and the property on High Point Road were the only assets available for her purpose.

Mr. Cox’s agreement to pay off the mortgage on the property immediately upon the death of Merle Cox so that her heirs or de-visees would take a one-half interest in the property free of all encumbrances is entirely inconsistent with a partition by sale — and if it be true, as petitioner alleges, that an actual partition of the 2.1 acres cannot be made without injury to the tenants in common, *21 this agreement is inconsistent with any partition at all. Furthermore, in the event Mrs. Cox should die before the mortgage was paid in full, the entire balance due on it was made a lien upon Mr. Cox’s one-half interest in the property. This clause of the contract reveals (1) that neither party envisioned that the other would sell his interest during her lifetime, and (2) that the mortgage lien should be removed from Mrs. Cox’s one-half interest — her one tangible asset — as early as possible so that she would have this security in the event of Mr. Cox’s death or incapacity, or in the event she had to enter a nursing home in some other locality. In all probability, this interest is now her anchor to windward, for Mr. Cox, having sold his entire share in the property, obviously lacks any incentive to preserve it, and it little concerns him whether the sums he obligated himself to pay are a lien upon the property. At the hearing he testified as follows: “I have paid her (Merle Cox) $100.00 every month. ... I have not breached my contract in any respect. ... I can’t go much further though.”

It was only three days after the execution of the deed of separation that Mr. Cox conveyed half of his undivided interest in the property (one-fourth of the whole) to respondent Stanley (his attorney) and Mrs. Stanley — presumably in payment of fees due Mr. Stanley. When, however, the Stanleys sought a judicial pronouncement that they held their one-fourth interest free of any claims by Mrs. Cox, this court held (1) that she had the right to sole occupancy and possession of the entire property during her life; (2) that the consent provisions of the divorce judgment —which bore the signature of respondent Harry R. Stanley as attorney for Mr. Cox — created an equitable lien upon Mr. Cox’s one-half undivided interest in the property to secure all payments which, in the separation agreement, he had agreed to make for Mrs. Cox’s benefit; and (3) that the Stanleys, having purchased with notice of the judgment, were equally bound by its consent provisions. Stanley v. Cox, supra.

Recognizing that this lien upon their one-fourth interest, together with Merle Cox’s life estate in the whole, will greatly depress the value of the fee if the property is sold for partition now, the Stanleys join with Merle Cox in denying petitioner’s right to partition the property during her lifetime. Petitioner, however, contends that its one-fourth interest is not burdened with a lien to secure the payment to Mrs. Cox of “each, every and all of the payments” specified in the separation agreement for these reasons: (1) it was unaware of the consent provisions in the divorce judgment which is not one of its muniments of title; (2) the judgment was not recorded in the office of the Register of Deeds; and (3) *22 no muniment of its title disclosed its existence. Morehead v. Harris, 262 N.C. 330, 137 S.E. 2d 174. See Winborne v. Guy, 222 N.C. 128, 22 S.E. 2d 220; Turner v. Glenn, 220 N.C. 620, 18 S.E. 2d 197.

Petitioner recognizes that, without Merle Cox’s joinder in its petition for partition by sale, G.S. 46-24, she cannot be dispossessed of the premises during her lifetime, G.S. 46-23, but it argues that her right to continuing occupancy will fully protect her in the manner contemplated in the deed of separation. This argument overlooks the realities. If the property is sold subject to the uncertain duration of her life estate and the lien on the Stanleys’ interest, the value of the property will most certainly be reduced. Eberts v. Fisher, 54 Mich. 294, 20 N.W. 80. The sale would likewise sacrifice the security, which it was one of the major purposes of the deed of separation to provide. Mrs. Cox could protect herself only by purchasing the property at the sale. This she might not be able to do. There is nothing in the record, however, which suggests that she would be able to outbid petitioner in a contest. But even if she became the last and highest bidder, and thus acquired the fee in the other half of the property, a lien upon it to secure Mr. Cox’s payments would be no lien at all! The creditor would have purchased the security. It is apparent that the partition which petitioner seeks would be in contravention of the separation agreement and would defeat its purposes. An agreement against partition will therefore be implied. 68 C.J.S., Partition § 44 (1950); 40 Am. Jur., Partition § 7 (1942). “(I)f the intention is sufficiently manifest from the language used, the court will hold that the parties may effectively bind themselves not to partition even without express use of the word.” Michalski v. Michalski, 50 N.J. Super. 454, 462, 142 A. 2d 645, 650.

If we concede, as petitioner contends, that its one-fourth interest (unlike that of the Stanleys) is not subject to the lien which the consent provisions of the divorce judgment imposed, it is, nevertheless, subject to the implied agreement contained in the deed of separation.

Since we hold that petitioner has no right to partition the property in suit during the lifetime of Merle Cox without her consent, it is not necessary to decide whether petitioner produced satisfactory proof that the land could not be partitioned in kind without injury to some or all of the cotenants. On this point see Brown v. Boger, supra; Mineral Co. v. Young, supra.

The judgment below is

Affirmed.