Richardson v. Barnes , 238 N.C. 398 ( 1953 )

77 S.E.2d 925 (1953) 238 N.C. 398

RICHARDSON et al.
v.
BARNES et al.

No. 241.

Supreme Court of North Carolina.

October 14, 1953.

F. H. Brooks and Hooks & Britt, Smithfield, for petitioner-appellants.

V. D. Strickland, Rich Square, for respondent-appellees.

BARNHILL, Justice.

When two or more persons own land as tenants in common, any one or more of the cotenants may institute a proceeding before the clerk of the Superior Court of the county in which the land is situate for the division of the land to the end the unity of ownership and possession may be severed and the tenants in common may own their respective shares in severalty. It is a remedy provided exclusively for tenants in common, though a person owning an estate for life may join in the proceeding. G.S. § 46-24. Therefore, the proceeding, if adversary, must be instituted by a tenant in common against his cotenants.

At common law the proceeding could be maintained only by one in possession. Gillespie v. Allison, 115 N.C. 542, 20 S.E. 627; Chas. W. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341. Under our statute, however, for the purpose of partition, remaindermen "shall be deemed seized and possessed as if no life estate existed." G.S. § 46-23; Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86; Moore v. Baker, 222 N.C. 736, 24 S.E.2d 749; Bunting v. Cobb, 234 N.C. 132, 66 S.E.2d 661.

But a tenant for life and a remainderman are not tenants in common, and the interest of a life tenant may not be affected in a partition proceeding against his will. Chas. W. Priddy & Co. v. Sanderford, supra. Hence G. A. Richardson and his wife, acting alone, have no right to institute and prosecute this proceeding. Ray v. Poole, 187 N.C. 749, 123 S.E. 5. Moreover, they possess an estate for life in all the land, and there is no way provided for its partition except, perhaps, between the life tenants themselves, which they do not seek. It is apparent the court below had these facts in mind when it entered its judgment.

However this may be, the joinder of the life tenants as petitioners does not invalidate the proceeding. G.S. § 46-24; Chas. W. Priddy & Co. v. Sanderford, supra. The remainderman petitioner is entitled to partition as a matter of right, G.S. § 46-23, Chadwick v. Blades, 210 N.C. 609, 188 S.E. 198; Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76; Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 1 S.E.2d 853, unless actual partition cannot be made without injury to some or all of the parties interested. In that case, he is entitled to sale for partition. G.S. § 46-23.

Strike the names of the life tenants from the caption and eliminate all the allegations in the petition pertaining to them, and the reasons why it is deemed necessary by petitioners that said land be partitioned, and we still have a maintainable petition for partition. This, for the reason the petitioner Jesse B. Richardson is a remainderman entitled to partition of the land subject to the outstanding life estate. Citizens Bank & Trust Co. v. Watkins, supra.

When a person is exercising a legal right in a lawful manner, the reasons which prompt him to act are, ordinarily, immaterial. Therefore the allegations in respect to the reasons which prompted the son and his copetitioners to institute this proceeding are mere surplusage and may be disregarded.

Jesse B. Richardson, a cotenant in remainder of the lands described in the petition, is entitled to a compulsory partition of the land. The life tenants have the right to join in the petition. Therefore the judgment entered in the court below is

Reversed.