Davis v. Griffin , 249 N.C. 26 ( 1958 )

105 S.E.2d 119 (1958) 249 N.C. 26

Robert L. DAVIS III and wife, Anne S. Davis, Margaret Davis Allen and husband, W. A. Allen, and Janie Davis Griffin, Unmarried,
v.
Francis Millard GRIFFIN, W. A. Allen III, Frances Marion Allen, and Margaret Elizabeth Davis, Minors; The Unborn Next of Blood Kin of Robert L. Davis III, The Unborn Next of Blood Kin of Margaret Davis Allen, and the Unborn Next of Blood Kin of Janie Davis Griffin; All persons now in being who are or may in any contingency become interested as nearest of Blood Kin of Margaret Davis Allen, Janie Davis Griffin, and Robert L. Davis III, In the tracts or parcels of land described in the Petition filed in this proceeding, as contingent remaindermen, but who because of the contingency cannot be ascertained and are now unknown, all appearing here by their Guardian Ad Litem, Sam B. Underwood, Jr.

No. 99.

Supreme Court of North Carolina.

October 8, 1958.

Underwood & Everett, Greenville, for respondents-appellants.

Lewis & Rouse, Farmville, for plaintiffs-appellees.

WINBORNE, Chief Justice.

The appellant states, and the appellees agree, that the question involved on this appeal is substantially as follows:

Do the petitioners, owning in fee undivided interests in several tracts of land, and also owning life estates in the balance of the undivided interests in the same tracts of land, have the right, as against contingent remaindermen, to partition the several tracts of land so that petitioners may hold some tracts in fee and in common, and the remainder of the tracts be held by them as life tenants with remainder over?

The petitioners are not asking for a partition as between themselves and the remaindermen as to the fractional shares of real estate in which the petitioners as life tenant and the remaindermen are concerned. They are seeking a partition separating these fractional interests from the fractional interest in which they have the fee—so that they may know the boundaries of the real estate they own in fee, distinct from the boundaries of that in which they as life tenants and the defendants as contingent remaindermen are interested.

In the light of our statute pertaining to partition, Chapter 46 of General Statutes, as interpreted by decisions of this Court, it is held that the question merits an affirmative answer.

In this State pertaining to partition of real estate it is provided by statute, G.S. § 46-3, that "One or more persons claiming real estate as joint tenants or tenants in common may have partition by petition to the Superior Court." Such partition "shall be by special proceeding, and the procedure shall be the same in all respects as prescribed by law in special proceedings, except as modified" in the statute, G.S. § 46-1.

And it is provided in G.S. § 46-23 that the existence of a life estate in any real estate shall not be a bar to a sale for partition of the remainder or reversion thereof, and "for the purposes of partition the tenants in common or joint tenants shall be deemed seized and possessed as if no life estate existed." See Richardson v. Barnes, 238 N.C. 398, 77 S.E.2d 925, 927, and cases cited.

Therefore the proceeding, if adversary, must be instituted by a tenant in common against his co-tenant, deeming the remaindermen as "seized and possessed as if no life estate existed." Richardson v. Barnes, supra, and cases cited.

Indeed a tenant in common is entitled as a matter of right to partition of real estate held in common, to the end that he may have and enjoy his share therein in severalty. Barber v. Barber, 195 N.C. 711, 143 S.E. 469, and cases cited. And, as held in Richardson v. Barnes, supra, a person owning an estate for life may join in the proceeding. G.S. § 46-24.

Therefore the judgment from which appeal is taken is affirmed, and the cause will be remanded to the Clerk of the Superior Court of Pitt County for further proceedings accordant with law.

Affirmed.