24 S.E.2d 749 | N.C. | 1943
This is a special proceedings instituted before the clerk of the Superior Court of Halifax County, N.C. 4 February, 1942, for the partition of certain lands.
It is alleged that the petitioners and the defendants are now tenants in common and are the owners of and are seized in fee simple of the lands referred to in the petition, except the defendant John B. Cherry, and that the petitioners are informed and believe that the said John B. Cherry is now "in possession of some part of said lands, to which possession he is not entitled."
Defendants Martha Norman (Pattie) Baker, Sallie Baker Everett and B. B. Everett demurred to the petition on the ground that the court has no jurisdiction, in that the interest of John B. Cherry is not set out and it is affirmatively stated in the petition that said defendant is now in possession of part of the said land, to which possession he is not entitled.
On 28 July, 1942, the clerk of the Superior Court entered judgment sustaining the demurrer.
On appeal from the clerk, his Honor sustained the demurrer, for that:
"The court is without jurisdiction due to an improper joinder of (a) parties, and (b) causes of actions."
His Honor held that since in his opinion the Court is without jurisdiction, and having sustained the demurrer on that ground, the second cause of demurrer, to wit, "That the complaint does not in law state a cause of action," is not before the Court.
From the judgment sustaining the demurrer, plaintiffs appeal to the Supreme Court, assigning error. Prior to the enactment of chapter 214, sec. 2, of the Public Laws of 1887, C. S., 3234, cotenants in remainder or reversion had not right to enforce a compulsory partition of land in which they had such estate.
A tenant in common is entitled to a compulsory partition, and to enable said tenant to maintain a proceeding for such partition he must have an estate in possession, one by virtue of which he is entitled to enjoy the present rents or the possession of the property as one of the cotenants thereof. 40 Am. Jur., sec. 28, p. 22. The possession need not be actual. The actual possession may be in a life tenant, but that is not longer a bar to a proceeding for partition instituted by tenants in common, who are remaindermen or reversioners. Under the above statute tenants in common are deemed to be seized and possessed as if no life estate existed. But the actual possession of the life tenant cannot be disturbed so long as it exists. The tenants in common, however, have the immediate right of possession, subject only to the termination of the life estate. Priddy Co. v. Sanderford,
The petitioners herein allege that the petitioners and the defendants except John B. Cherry, are tenants in common and are the owners of and are seized in fee simple of the tracts of land described in the petition.
The demurring defendants contend that the affirmative statement in the petition, that John B. Cherry is in the possession of some part of the lands described in the petition and that the possession is wrongful is sufficient to oust the jurisdiction of the court, and that this proceeding cannot be maintained until an action in ejectment against Cherry is instituted and the tenants in common have actual possession of all the land sought to be partitioned. They further contend that an allegation of possession in the petitioners is essential to give the court jurisdiction in partition proceedings, citing Alsbrook v. Reid,
The appellees also cite the case of Church v. Trustees,
We come now to consider the allegation relative to the wrongful possession of John B. Cherry. The allegation is insufficient to convert this action into an action for ejectment and may therefore be treated as surplusage, except as affecting costs. This Court said in Baggett v.Jackson,
Proceedings for the partition of land do not ordinarily place the title at issue, and unless the title is placed at issue, petitioners are not required to prove title as in an action for ejectment. Talley v. Murchison,
It was intimated in the argument before this Court that the defendant Cherry named in the petition, may not have been served with process. There is nothing in the briefs or in the record to support the suggestion that the J. B. Cherry actually served is not the John B. Cherry named in the petition; hence, we do not consider the question before the Court.
The demurrer should have been overruled.
Reversed. *740