38 N.C. 209 | N.C. | 1844
The bill asks partition of a tract of land lying in the (210) county of Carteret. It alleges that Andrew Wilson, Sr., formerly of that county, died many years since intestate, seized and possessed of the tract of land in dispute, without leaving any widow, and that the female plaintiffs are his heirs-at-law, and entitled with the other plaintiffs, their husbands, to the said tract of land; that among the children of said Andrew Wilson, Sr., who survived him, was his son, Andrew Wilson, Jr., and that they have been informed, but have no knowledge of the fact that the share or interest of the said Andrew Wilson, Jr., had been sold by the Sheriff of Carteret under an execution issued against him and that he, the defendant, had purchased it. The bill does not admit any such sale ever did take place, but alleges, if it did, that the said Andrew Wilson repaid to the defendant the money paid by him, or that he, the defendant, had property or funds of the said Wilson in his hands which he applied in that way. It states that the defendant took possession of the whole tract under his said alleged purchase, and has remained in possession claiming the whole land as his own ever since. The bill further alleges that, at the time the defendant made his purchase, the female plaintiffs, the heirs-at-law of Andrew Wilson, Sr., and Jr., were married to the other plaintiffs and were each under the age of twenty-one years — and that they are still covert of their husbands. It then alleges, if the defendant, by his purchase of the interest of Andrew Wilson, Jr., acquired any *163 interest in the said lands, which they do not admit, that they are tenants in common with him and entitled to partition and to an account of rents and profits. The defendant admits by his answer the seizin of Andrew Wilson, Sr., but denies that he died seized — as before his death he had sold and conveyed the whole of the land to his son, Andrew Wilson, Jr.,; avers that a judgment was obtained against the said Andrew, Jr., in his lifetime, upon which an execution issued and was levied on the land, as the property of said Andrew, Jr., and it was sold by the Sheriff of Carteret County at public sale, when he purchased the said land and took from the sheriff a conveyance of the whole tract, which deed of conveyance (211) was immediately proved before the proper authorities, and duly registered; that he paid his own money for it, and that no part was paid out of the funds of the said Andrew Wilson, Jr., nor did the said Andrew ever repay the same or any part of it. The defendant further avers that the sale was on 21 June, 1826 — that he immediately took possession, claiming it as his own, and has so remained in the adverse possession up to the time of the filing of the bill, a period of fifteen years, and claims the benefit of the statute made for the quieting of titles to land. The answer denies that the female plaintiffs were under age at the time of their marriage, but avers that they were then each of them over the age of twenty-one years. It denies that Andrew Wilson, Sr., died intestate, but avers that he made a last will and testament sufficient to convey real estate, and that by the said will the plaintiffs nor any one of them are entitled to any portion of the lands in question. Upon the evidence we could not say that the defendant has established the fact that Andrew Wilson, Sr., ever did convey the land to his son, Andrew Wilson, in fee, and it appears that the feme plaintiffs were married when the defendants entered. Yet as this is a bill for partition, we are unable to sustain it on other grounds. 2 Story Eq. Jur., 599, in treating on partition, says, "Another head, of concurrent jurisdiction is that of partition in cases of real estate held by joint tenants, tenants in common and parceners." And our act, passed originally in the year 1787, Rev. Stat., ch. 85, enacts, that the Judges of the Superior Courts of Law and Equity and the Justices of the County Courts of Pleas and *164 Quarter Sessions are required and empowered, on the petition of one or more persons claiming the real estate of any intestate or otherwise claiming any real estate as tenants in common or joint tenants, etc., to decree a (212) partition. It is under this act that our Courts of Equity exercise jurisdiction on this subject. To entitle a party to the aid of a Court of Equity in making partition, he must state his own title and the title of the defendant, whereby it shall appear that they do claim to hold the lands in one of the characters pointed out in the act. If the defendant denies the legal title of the plaintiff, or claims a sale and adverse possession, a Court of Equity can not proceed, until the plaintiff has re-established the unity of his possession with the defendant as a tenant in common. This can be done only in a Court of Law, when the title of the plaintiff is a legal one; for the question of title and possession are legal questions. When, by the trial of issues directed for this purpose, or of an action directed to be brought, the plaintiff has by the verdict of a jury established his legal title and restored the unity of his possession with the defendant, the decree in equity will follow of course. In such cases, that is, when the plaintiff has stated a case in his bill entitling him to the aid of the Court, and the defendant denies his title and possession, the Court will not dismiss the bill, but will retain it, and give the plaintiff proper time to establish his title and recover the possession of the share he claims. Wilkin v. Wilkin, 1 John., ch. 111; Phelpsv. Green, 3 do., 282; Garrett v. White, ante, 131. The Court in this case has been urged to retain this bill and give the plaintiffs time to establish their title at law. This we can not do. The plaintiffs have not stated such a case as in our opinion will authorize the Court to do so. It has been before stated that, in a bill for partition, the plaintiff must not only state his title to the share in the land sought to be divided, but the title of the defendant, whereby it may appear that they are tenants in common, and have a unity of possession. 1 Mod., 240; Cartwright v.Pultney, 2 Atk., 380. In this case the plaintiffs allege their title to the land in question, and claim the whole. They deny that the defendant has any title; and if his purchase of the interest of Andrew Wilson, Jr., was a fair one, and made for a valuable consideration, then they charge they are tenants in common with him, are (213) entitled to have the land divided, and their shares allotted them.
And they admit that the defendant is, and for many years has been, in the sole possession of the premises. In no case do they give the defendant a joint title or a joint possession, but *165 make a case for the action of a Court of Law, when the title is exclusively with the plaintiff and the possession with the defendant, and are calling on a Court of Equity to try an action of ejectment. Let them, if they can, establish their title at law, and thereby restore the unity of their possession with the defendant, and equity will aid them, no doubt, in obtaining partition of the land, according to their several interests. The bill must be dismissed, without prejudice to the plaintiff's right to file another bill. The plaintiffs must pay the costs.
PER CURIAM. BILL DISMISSED.
