5 S.E.2d 321 | N.C. | 1939
Special proceeding to sell of land to make assets for the payment of debts and for partition.
One W. D. McLelland died possessed of land and personal property in Iredell County and leaving a last will and testament in which, except for four specific legacies in the sum of $1,000 each to certain of his collateral heirs, he devised all of his property to his widow, the defendant Carrie Elliott McLelland. Thereafter the collateral heirs, there being no children, filed a caveat. Pending the trial of the caveat the parties agreed upon a distribution of the property and caveators withdrew the caveat and consented to the probate of the will in solemn form. A consent judgment in execution of the compromise settlement was thereupon entered by the judge presiding.
Under the terms of the consent judgment it was provided that after the payment of all debts, legacies and proper costs of administration, the collateral heirs, plaintiffs herein, shall have and receive one-half of the personal property of the estate of the said W. D. McLelland and one-half of all the real estate of the said W. D. McLelland in fee simple, and that the other one-half of said personal property and the other one-half of said real estate shall be held and retained by the defendant Carrie Elliott McLelland under the will. It then provided for the appointment of commissioners to make division of the real property in which division it was stipulated that there should be allotted to the defendant, at a value to be placed thereon by said commissioners, the W. D. McLelland home place and certain adjoining lands and such other lands as might be necessary to make up her full one-half share of the real estate.
The judgment further provided:
"And it is hereby further ordered and decreed that under and by virtue of the provisions of section 607 of the Consolidated Statutes, this judgment shall act as a transfer and conveyance to the said heirs at law of the said W. D. McLelland of their rights, title and interest to the personal property and real estate of the said W. D. McLelland allotted to said heirs at law by this judgment, subject to the payment of the debts of the estate as hereinbefore set forth."
In her answer to the petition herein the defendant alleged the facts, pleads the consent judgment and prays: "That one-half of the land in value belonging to the estate of W. D. McLelland be allotted to her and that she be permitted to pay one-half of the valid debts and charges of *445 administration and thereupon the lands allotted to her under the consent judgment be relieved of any further liability for the obligations and costs of administration"; and that the other one-half be allotted to the heirs at law, subject to the payment of one-half of the valid obligations and costs and charges of administration.
When the cause came on to be heard, the court, being of the opinion that it was without authority and power at law or in equity in the absence of the consent of all the interested parties to grant the defendant's prayer for relief, declined to enter judgment thereon. The cause was thereupon remanded to the clerk for further proceedings in accord with the petition. The defendant excepted and appealed. This appeal presents but one question for determination. Was the court below without power and authority to grant the relief prayed by the defendant in her answer?
Partitions and sales for partition are equitable in their nature. Weeksv. McPhail,
Under the proper interpretation of the consent judgment the plaintiffs were allotted one-half of the real property in value subject to one-half of the debts and costs of administration. The defendant was allotted the other one-half, including specifically the home place and certain contiguous property to which she would have been entitled under the will or at law, subject to one-half of the debts and costs of administration. She now asks that the spirit and purpose of this consent judgment be complied with and offers to pay the one-half of the debts and costs of administration assessed against her real property in exoneration thereof. All that she asks is that the plaintiffs do likewise, or that their share be sold to pay that portion of the debts and costs of administration for which it is primarily liable. She concedes that if the one-half of the real property allotted to the plaintiffs does not bring a sufficient amount to pay the charges against it, then that her share is liable for the balance.
We can see no reason why the court below, in the exercise of its equity jurisdiction, does not have full jurisdiction, power and authority to grant the relief prayed by the defendant. Otherwise, the plaintiffs will be permitted to sell the one-half of the real estate allotted to them for the *446 payment of all, rather than one-half, the debts, and then to resort to the defendant's real property for their one-half share.
The rights of the creditors are not adversely affected. If the relief defendant seeks is granted the payment of their claim is still assured. Therefore, Hinton v. Whitehurst,
Upon the defendant's answer and prayer for equitable relief the court below should review the rights of the litigants and make such order as is necessary to do justice between the parties. In any event, Tracts Nos. 2 and 3, as described in the petition, should be first sold and the proceeds thereof applied to the payment of the debts in ascertaining the amount for which the defendant's real property is primarily liable. These tracts were purchased at foreclosure sales to protect mortgage notes held by the administrator. In adjusting the equities between the parties they should be treated as personal property.
Error.
