Moore v. . Eagles , 5 N.C. 302 ( 1809 )

From New Hanover. To this petition the defendant (who was an infant), by his guardian, put in a plea, setting forth that Richard Eagles, the elder, was seized and possessed of certain lands, situate in Eagles' Island aforesaid, and by his last will and testament, dated 23 March, 1769, and which had been duly proved, devised two-thirds of his lands upon said island to his son Joseph Eagles, in the petition mentioned, in fee, and the other third to his daughter, Susannah Elizabeth Eagles, in fee; that the said Susannah Elizabeth intermarried with Alfred Moore, esquire; and they by deed bearing date the . . . . day of . . . . in the year . . . . conveyed the third part of said lands, devised to the said Susannah Elizabeth as aforesaid, to Maurice Moore, esquire, who by deed reconveyed the same lands to the said Alfred Moore; that Joseph Eagles, named in the petition, departed this life as set forth in the petition, and that his share in the said lands, to wit, two-thirds part thereof, descended to his sons Richard and the defendant Joseph. Admitting that the petitioner purchased of Richard, as set forth in the petition, the defendant stated that he was advised the lands aforesaid devised to the said Joseph Eagles and Susannah Elizabeth Eagles were held by and belong to the said Alfred Moore, Maurice Moore and the defendant, as tenants in common, and that no division of said lands could take place according to the laws of this State, by virtue of any petition filed for that purpose, unless the said Alfred Moore was made a party to the petition; that no severance of said tenancy in common or partition of said lands had been made among or between the parties claiming said lands or shares therein, under the last will and testament of the said Richard Eagles, the elder; and that the said lands then remained to be divided between the said Alfred Moore, Maurice Moore and the defendant, as tenants (304) in common. That Alfred Moore was not named in the petition either as a petitioner or defendant, nor was any division of said lands sought, as related to the interest of said Alfred Moore therein; and defendant demanded the judgment of the court whether he should be compelled to make any other or further answer to the petition until the said Alfred Moore should become a party to the petition.

To this plea of the defendant, the petitioner filed a replication, stating that his petition was sufficient in law to be answered unto by the defendant, without the said Alfred Moore being made a party to the same; because he averred that long before he filed his petition, to wit, on 28 January, 1788, Joseph Eagles, father of the defendant, then being proprietor of two-thirds, and the said Alfred Moore of one-third, as tenants in common of the said lands, did, by a deed indented and bearing date the day and year aforesaid, make partition of the said lands, and did thereby dissolve the said tenancy in common, as by the said deed would more fully appear.

The deed referred to in the replication was in the following words, to wit:

Whereas Richard Eagles, formerly of Brunswick County, gentleman, in and by his last will and testament, devised his lands on the green island opposite Wilmington, commonly called Eagles' Island, to be divided between his son, Joseph Eagles, party to these presents, and Susannah Eagles (now Susannah Moore), his daughter, in the proportion of two-thirds to his said son Joseph Eagles and one-third to his daughter Susannah; and whereas the division hath never been made: This indenture therefore witnesseth, that the said Joseph, on the one part, and Alfred Moore, husband of the said Susannah, on the other part, have agreed, and by these presents do agree, that the lands shall be divided in the following manner, that is to say, that as to all those lands on the said island which belonged to the said Richard Eagles at his death, and which lie below the causeway or great road through the said island, the said Joseph's two-thirds shall be taken all together, and shall begin at the lower end of the said island, and be bounded by the Northwest (305) River on the one side and by the Northeast River and Great Creek on the other; and the said Susannah's third shall be taken off of the remainder, lying above the said Joseph's and below the said causeway; and as to all that part of the said island belonging to them as aforesaid, and lying above the said causeway, the said Joseph's two-thirds shall be taken next the thoroughfare and Northeast River, and the said Susannah's part, or the other third, shall be taken next the causeway. If any lots immediately opposite to Wilmington shall be found still belonging to them, they shall hereafter be divided as they may agree.

A. MOORE. [SEAL.] Jo. EAGLES. [SEAL.]

Signed, sealed and delivered, this 28 January, 1788, in the presence of

JOHN SWANN,

JAMES READ.

To this replication the defendant demurred, and the plaintiff having joined in demurrer, the case was sent to this Court for the opinion of the judges. I regret very much, on this question, I should differ in opinion from my brethren, who have overruled this demurrer. But as it is my duty to be guided by the best judgment I can form on this subject, and not by the opinion of others, I shall briefly state the grounds on which my opinion is formed. The deed set forth in the replication of the petitioner does not state either the beginning, the courses, or the lines of Moore's one-third, but only one what part of the island it shall be laid off. It does not state whether his share shall consist of one-third in quantity or of one-third in value; it declares that one-third (meaning certainly whatever share was devised to Mrs. Moore) should be laid off in a certain part of the island. I have always understood a tenant in severalty to be one whose estate is severed and separated from that of all others, and who completely knoweth his own land. I would then ask, can any man, from this deed, know precisely Moore's one-third? But it is said, "That is certain which can be made so," and that as this deed says Moore's share shall be taken off adjoining the causeway, any surveyor can ascertain where the share will be, and that to effect a partition it is not necessary to have a survey and marked lines. To this I answer, that unless the deed of partition should state some point at which the beginning shall be, some courses to be run by a surveyor, or some natural boundary, which can with certainty be ascertained, the partition cannot be so made as to leave an estate in severalty to one of two tenants in common. I am not able, from the description of this deed, to say that any such certainty is contained therein, or that by any possibility it can be made certain. For I think one-third of this tract can be laid off so as to answer the description of this deed, in as many different (309) ways as the fancy of twenty surveyors might suggest. If surveyed by one to-day, from the face of the deed, he would give land to Mr. Moore which another on to-morrow would take from him, and thus the land would be Moore's or Eagles', according to chance, or the caprice of a surveyor. It has been further said that the land just below the causeway is certainly Moore's, and if he can place his foot on a single spot, and say it is his, that is evidence of a partition. I admit that it is as to that spot, but not as to the whole third; and if Moore be a tenant in common of a single acre, although as to the rest he may be a tenant in severalty, yet this demurrer ought to be sustained, and Moore made a party. It is further urged that if this demurrer be sustained, and commissioners be appointed under our act of Assembly to make partition, this deed will not restrain them from laying off Moore's third where they please, and that the Court cannot impose terms which the commissioners are bound to pursue. I admit that if such an order should be made by the Court, and commissioners appointed under it, such a consequence might ensue. But I think no such order can or ought to be made. I am far from viewing this deed as a mere nullity; I consider it as a covenant binding Eagles and his heirs, and all claiming under him, to divide according to the spirit of this instrument, and that this is a case where the common-law remedy cannot be used; that when Moore is made a party he has nothing to do but to plead this deed in order to oust the law court of its jurisdiction and compel the petitioner to resort to a court of equity, which will decree partition to be made according to the deed. For the act of Assembly affords a remedy only where there is neither a partition nor a covenant to divide in any particular manner, leaving the commissioners with full powers to divide equally between the parties, and to ascertain the difference in value of the respective shares. The remedy therefore (310) given by the statute, only extending to cases where no partition has been made, nor any agreement binding the parties to divide in a particular way, seems to me not to embrace this case, but to leave the parties to such remedy as was in force before the passing of the act. For these reasons I am of opinion that the demurrer ought to be sustained. But,

By HALL, LOWRIE, WRIGHT, JJ. Let the demurrer be overruled.

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