Washburn v. Washburn , 234 N.C. 370 ( 1951 )

67 S.E.2d 264 (1951) 234 N.C. 370

WASHBURN et al.
v.
WASHBURN et al.

No. 311.

Supreme Court of North Carolina.

October 31, 1951.

Reuben L. Elam, Shelby, for the petitioners, appellants.

B. E. Weathers, Shelby, for the guardian ad litem of the defendants, appellant.

Joseph M. Wright, Shelby, for the commissioner, appellant.

L. T. Hamrick and Falls & Falls, all of Shelby, for the judgment creditors, appellees.

ERVIN, Justice.

The judge was undoubtedly prompted to enter his judgment by quotations from various texts appearing in the opinion in Edmonds v. Wood, 222 N.C. 118, 22 S.E. 2d 237. These quotations state, in substance, that a partition purchaser takes title to real property free of judgment liens against the interest of one of the co-owners and that such judgment liens are transferred to the judgment debtor's share of the proceeds of the partition sale, even though the judgment creditors are not parties to the proceeding for partition.

A scrutiny of the texts cited reveals that the statements embodied in the quotations are based on decisions of courts in other jurisdictions having statutes which provide in varying phraseology that a partition sale frees the land from all preexisting liens, and deprives the lien holders of all remedies save that of seeking payment out of the proceeds of sale. Inasmuch as the supposed judgment lien involved in the Edmonds case had been extinguished by the satisfaction of the underlying judgment, the statements incorporated in the quotations from the texts were unnecessary to the determination of that case, and must be regarded as obiter dicta.

The statements under scrutiny are, indeed, in direct conflict with the North Carolina statute, which describes the title acquired by a partition purchaser. Such statute specifies that "The deed of the officer or person designated to make such sale shall convey to the purchaser such title and estate in the property as the tenants in common, or joint tenants, (and all other parties to the proceeding) had (therein)." G.S. § 46-30. The words embraced in the two parenthesis were inserted in the statute by Chapter 719 of the 1949 Session Laws, and are in complete harmony with the earlier decisions of the Supreme Court relating to the question now under consideration.

These decisions establish these propositions:

1. The holders of judgment liens on land sought to be partitioned or on undivided interests in such land are not necessary parties to a proceeding to partition the land by sale. Holley v. White, 172 N.C. 77, 89 S.E. 1061; Jordan v. Faulkner, 168 N.C. 466, 84 S.E. 764; Matter of Harding, 25 N.C. 320. But they are proper parties to such proceeding. Holley v. White, supra.

2. The partition purchaser takes the land subject to the judgment liens of creditors not made parties to the partition proceeding. Holley v. White, supra; Jordan v. Faulkner, supra.

3. Since they are in nowise affected by the partition sale, judgment creditors, who are not parties to the partition proceeding, have no right to apply to the court after final decree to have their debtor's share of the proceeds paid to them. Holley v. White, supra; Jordan v. Faulkner, supra; Matter of Harding, supra. Moreover, they can not be permitted to intervene for such purpose after the officer or person making the partition sale has put an end to the proceeding by disposing of the proceeds of sale in conformity with the final decree. Sanders v. May, 173 N.C. 47, 91 S.E. 526; Wilson v. Bank of Lexington, 77 N.C. 47.

These things being true, it follows that the judge erred in rendering the judgment challenged by the appeal.

Inasmunch as they were not parties to the proceeding, the rights of the judgment creditors of John Washburn, Sr., were not affected in any degree by the partition sale. They retained their judgment liens on the interest of John Washburn, Sr., as tenant by the curtesy in the land sold for partition, and did not acquire any rights in his share of the proceeds of the sale. As a consequence, the commissioner committed no legal wrong against the judgment creditors by paying such share of the proceeds of the sale to John Washburn, Sr., and his appointees, i. e., his children. For present purposes, such payment was a substantial compliance with the order of the clerk directing payment of that share to John Washburn, Sr. It thus appears that the commissioner put an end to the proceeding before the attempted intervention of the judgment creditors by disposing of the proceeds of sale according to the final decree.

For the reasons given, the judgment is reversed.