Holmes v. . Holmes , 55 N.C. 334 ( 1856 )

Moses Holmes, the former owner of the mill in question, devised it in certain proportions to his son, the plaintiff, Reuben L. Holmes, and to his widow, and another son, named Cicero, (who is an infant,) as tenants in common. Shortly after the testator's death, violent controversies arose between the plaintiff and the defendant Ann, in regard to the mill and other matters, especially in regard to the employment of a miller. The plaintiff had put a free negro of bad character, by the name of Bob Valentine, in charge of the mill, who was strenuously objected to by the defendant Ann, and was, by her, turned out of it, and a slave of her own, by the name of Jim, put in his place; this slave was, in turn, driven out by the plaintiff, and Bob replaced. Sometimes the mill was locked, and the agent of one or the other party kept out; and at one time the defendant Ann, was refused admittance, and kept out by force.

The defendants Ann and Cicero both answered; the first denying that she was to blame for the dissensions existing between her and the plaintiff; objecting to a sale of the property upon the ground that she had a large family dependent upon the profits of the mill, and that it would be greatly to her interest, and that of her infant son, the third tenant in common, that it should be continued as common property.

An order was made referring it to the clerk and master of Davidson County, to inquire and report whether it would be for the interest of the several parties that the property should be sold. Much (335) testimony was taken before him, upon the inquiry instituted under the order; but as it is all immaterial, under the view taken of the case in this Court, it is omitted.

The clerk and master reported that it was to the interest of all the parties that the property should be sold.

To this report the defendants filed various exceptions, which, for the reason as applying to the testimony, it is not deemed necessary to state.

The cause was set down for hearing upon the petition, answers, former orders, the report of the clerk and master, and the exceptions to the same.

His Honor, Judge DICK, sustained the exceptions to the report, and ordered the same to be set aside, also that the petition be dismissed. From which decree the plaintiff appealed to the Supreme Court. This is a petition for partition. The petition alleges, that from the nature of the property, it cannot be divided without prejudice to the interest of all the parties, and prays that the mill may be sold for the purpose of partition, according to the Act of Assembly.

Tenants in common are entitled to partition, as of right; co-parceners [co-partners] had this right at common law; the right is conferred upon joint-tenants and tenants in common by statute. The mode of assigning dower in mills, is to allow the widow every third "toll dish," or every third day, week, or month, etc. The mode of making partition among tenants in common, was the same, each taking a toll dish alternately, or alternating by each having the mill a specified time. This mode of making partition, was found to be inconvenient, if not impracticable; and to remedy this evil, among other things, the Act of Assembly above referred to, confers upon Courts of Equity the power to order a sale for the purpose of partition, when actual partition cannot be made without injury to some or all of the parties interested. Rev. Code, (336) ch. 82, sec. 8. The action taken in the Court below, was under an entire misconception of the rights of the parties. The defendants do not aver that an actual partition can be made without prejudice to the interest of the parties, but object to a sale on the ground, that it would be more for their interest, that the mill should be kept by the parties, as tenants in common. The reference to the clerk and master, is to report "whether the land and mill, mentioned in the pleadings, should be sold." He reports that, in his opinion, that it would be for the interest of the parties that the mill should be sold. His Honor was of a different opinion, and ordered the petition, so far as it prays for a sale of the mill, to be dismissed. This, we say, was an entire misconception. The question was not whether it was for the interest of the parties to sell the mill, but whether it was not better to sell the mill, than to make actual partition in the common law mode! As to this, there can be no difference of opinion; any one at all acquainted with that kind of property, will say at once it is out of the question to try to run a mill where different parties are entitled to the alternate "toll dish," or alternate times. Suppose it to be allotted to the parties by alternate weeks, so that negro Jim, or whoever the defendants choose to put there, has the management for one week, and the next, it is put in the charge of Bob Valentine; how long would the neighbors continue to send to the mill? They could not have "standing bags," or allow grain or flour to stay over after each Saturday night, without the necessity of taking an account between Jim and Bob, as to what would be missing. Jim, on Saturday night, would leave the gates up; and no head of water for Monday. Bob would run gravel through the stones, and Jim would leave the mill running empty; rats would cut the bolting cloth, etc., etc., to say nothing on the subject of repairs; what are necessary; how they should be done; by what workmen, etc.

It it be said, should one party be in default, application could be made to a Court of Equity; admit it; but how soon would the profits be absorbed by the costs, if the clerk and master was to (337) be called on to report who was a suitable miller; what were the necessary repairs; what workmen, etc., etc.; in short, if the mill was to be taken in charge by the Court of Equity. The same objections apply to a jurisdiction of this kind, which induced the Court to refuse to attempt to give relief upon contracts in relation to co-partnerships. If parties, although bound by express contract to do business as co-partners, in a store for instance, cannot agree as to its management, a Court of Equity does not attempt to make them agree, nor to manage the business for them. The only relief is to enable them to dissolve, and to wind up the concern.

Per curiam.

The order appealed from is reversed. Cited: Church v. Trustees, 158 N.C. 123; Haddock v. Stocks, 167 N.C. 74;Foster v. Williams, 182 N.C. 636; Barber v. Barber, 195 N.C. 712;Talley v. Murchinson, 212 N.C. 206; Trust Co. v. Watkins, 215 N.C. 294;Rostan v. Huggins, 216 N.C. 389; Mineral Co. v. Young, 220 N.C. 290.