166 | N.C. | Sep 25, 1963
Madge Barlowe ROBERTS and husband, W. M. Roberts,
v.
Frank W. BARLOWE and wife, Jerry Barlowe.
Supreme Court of North Carolina.
*484 Hollowell & Stott, Gastonia, for plaintiffs.
Mullen, Holland & Cooke, Gastonia, for defendants.
PER CURIAM.
Proceedings for partition are equitable in nature, and in a suit for partition a court of equity has power to adjust all equities between the parties with respect to the property to be partitioned. A sale for partition may be ordered and the rights of the parties adjusted from the proceeds of the sale. Henson v. Henson, 236 N.C. 429" court="N.C." date_filed="1952-11-05" href="https://app.midpage.ai/document/henson-v-henson-1364811?utm_source=webapp" opinion_id="1364811">236 N.C. 429, 72 S.E.2d 873. See also 14 Am.Jur., Cotenancy, ss. 43-46, pp. 109-113; 68 C.J.S. Partition § 136, pp. 212, 213.
Since the court below made no order affecting the distribution of the proceeds of the sale, the judgment directing a sale of the lands and appointing a commissioner will not be held erroneous. But the male defendant, having asserted his claims before an order of distribution was made, is entitled as a matter of right to have his claims determined before an order of distribution of the proceeds of the sale is entered. Lewis, Ex parte, 42 N.C. 4" court="N.C." date_filed="1850-08-05" href="https://app.midpage.ai/document/ex-parte-heirs-at-law-of-lewis-3659857?utm_source=webapp" opinion_id="3659857">42 N.C. 4.
Affirmed.