24 N.C. App. 653 | N.C. Ct. App. | 1975
Respondent appellants contend that since the court did not make findings of the necessity and advisibility of a sale there are insufficient findings of fact to support the order of sale. We cannot agree. The statute does not require any such findings.
G.S. 46-25 provides, “When two or more persons own, as tenants in common ... a tract of land . . . subject to a life estate, then in any such case in which there is standing timber upon any such land, a sale of said timber trees, separate from the land, may be had upon the petition of one or more of said owners, or the life tenant, for partition among the owners thereof, including the life tenant. ...” (Emphasis added.) The North Carolina Supreme Court has said this statute is permissive rather than mandatory. Chandler v. Cameron, 229 N.C. 62, 67, 47 S.E. 2d 528, 531 (1948). The use of the word “may” obviously makes the statute permissive. 7 Strong, N. C. Index 2d, Statutes, § 5, p. 75.
This statute changes the common law and permits a sale of timber for profit, by a life tenant, with the remaindermen receiving their share of the proceeds. At common law the life tenant was not permitted to sell standing timber, nor to receive benefit from it except for ordinary purposes in using the land. Dorsey v. Moore, 100 N.C. 41, 6 S.E. 270 (1888). When the life tenant cut timber it constituted waste unless he “acted as a prudent owner of the fee would have done.” Thomas v. Thomas, 166 N.C. 627, 630, 82 S.E. 1032, 1033 (1914).
G.S. 46-25 gives the life tenant an advantage in timber that he does not enjoy in land. Life tenants may not maintain partition proceedings against tenants in common in the remainder. Richardson v. Barnes, 238 N.C. 398, 77 S.E. 2d 925 (1953) ; Ray v. Poole, 187 N.C. 749, 123 S.E. 5 (1924).
Under G.S. 46-25 the court has the power in its discretion to order the -sale of timber upon the life tenant’s petition. A statute must be construed as it is written unless a literal interpretation leads to an absurd result. See 7 Strong, N.C. Index, supra at pp. 76, 77. When the language is clear and unambiguous the courts must give the statute its plain and definite meaning. We are powerless to interpolate, or superimpose, provisions or limitations not contained therein. State v. Camp, 286 N.C. 148, 152, 209 S.E. 2d 754, 756 (1974).
Although petitioner has not perfected his appeal we note a mistake on the face of the judgment. The court apparently confused G.S. 46-25 with G.S. 46-24 when it provided that the petitioner was to “receive annually the interest on his pro rata share of the proceeds of sale of said, timber.” In accordance with G.S. 46-25 the judgment is corrected as follows: “The petitioner is entitled to receive his portion of the net proceeds of the sale of the timber as ascertained under the mortuary tables established by law.”
The judgment is
