McPherson v. . Seguine , 14 N.C. 153 ( 1831 )

Upon liberum tenementum pleaded by the defendant, the cause was tried at GATES, on the last circuit, before his Honor Martin, J., when the plaintiffs produced:

1. A grant to one John Fontaine for 6,000 acres of land.

2. A deed from one Morris to the plaintiff, McPherson, dated in 1818, calling for 1,500 acres, a part of a tract of 6,000 acres granted to Fontaine, lying in the Dismal Swamp, but without stating any beginning or any particular lines.

3. A deed from McPherson to Sawyer and Proctor, and they (154) proved that Sawyer died, leaving an only daughter, who married proctor and had issue.

The defendant claimed an undivided part of the 6,000 acres granted to John Fontaine, and deduced his title as follows:

1. By proving Fontaine's death and the descent to his sons, William, John and Patrick.

2. A deed from Patrick to John Cowper for 1,500 acres of the 6,000-acre tract.

3. A partition of John Cowper's estate among his children, and an assignment thereby of the 1,500 acres of the original grant to Fontaine to Willis Cowper, one of the sons of John Cowper.

4. A deed from Willis Cowper to the defendant for 1,580 acres of land, "part of a large tract granted to John Fontaine, being the part allotted, laid off and divided to Patrick Fontaine and Charles Fontaine, heirs of John Fontaine, deceased, by the county court of Gates, at August Term, 1803, and being the lands purchased by John Cowper from said Patrick and Charles."

The plaintiff then proved a partition by parol made between the parties to this suit in 1819, before its commencement.

Upon the case thus appearing, his Honor nonsuited the plaintiff, who appealed. The deed under which the plaintiffs claim conveys only an undivided share of the 6,000 acres patented by Fontaine. The defendant's is also an undivided interest in that tract. The deed to him does not in itself describe any boundaries. It says, it is true, that the land thereby conveyed is part of a large tract patented by a certain John Fontaine and contains fifteen hundred and eighty acres, "being the part allotted, laid off and divided to Patrick Fontaine and Charles Fontaine, heirs of John Fontaine, deceased, by the county court of Gates at August Term, 1803, and being the land purchased by (155) John Cowper from said Patrick and Charles." But no such partition is produced as that referred to in the deed, nor is the deed to John Cowper produced. So that it is impossible to say that the deed covers any particular part of the 6,000 acres, but only the shares of Patrick and Charles Fontaine, whatever they may be.

The case states further that upon the death of John Cowper, his estate was divided amongst his heirs at law, and the interest in the Fontaine patent was thereby assigned to Willis Cowper, the vendor of the defendant. But that does not carry us a step further towards the several titles or possessions of the parties to this suit, because it does not seem that there was any partition between the Cowpers and the other claimants of the Fontaine patent, or that any particular specified portion of that was allotted to the Cowpers, or to Willis Cowper. It only amounts to this: that the interest of John Cowper in that patent, whatever it might be, whether in common or in severalty, should be taken as the share of Willis of the estate of John.

The parties, then, are tenants in common and one cannot maintain trespass against the other. The attempt to make a partition in pais in 1819 was nugatory. Anders v. Anders, 13 N.C. 529.

Besides, there are other objections which it would be difficult for the plaintiffs to get over. Among them, I may mention that upon the death of Proctor, one of the original plaintiffs, his heirs are made parties to revive instead of his executor.

PER CURIAM. Judgment affirmed.

Cited: Dobbs v. Gullidge, 20 N.C. 198; Gilchrist v. Middleton,107 N.C. 682; Rhea v. Craig, 141 N.C. 609.