Lockleair v. Martin , 245 N.C. 378 ( 1957 )

96 S.E.2d 24 (1957) 245 N.C. 378

Minnie Baker LOCKLEAIR and husband, George S. Lockleair
v.
Ebby MARTIN and wife, Pearl Martin.

No. 469.

Supreme Court of North Carolina.

January 11, 1957.

W. H. Yarborough, Raleigh, for plaintiff, appellant.

William T. Hatch, Raleigh, for defendant, appellee.

HIGGINS, Justice.

Both parties concede the respondent, Ebby Martin, is entitled to have allotted to him 100 acres of the described land on the west end of the tract and that the petitioner is entitled to the remainder. Both parties concede the proper way to divide the tract is to run a north-south line at such location as will cut off 100 acres on the west which shall be the property of the respondent, and the remainder of the tract on the east shall be the property of the petitioner.

What appears to have been a rather simple legal problem of locating the true dividing line between the adjoining landowners has been complicated by instituting a partition proceeding rather than a processioning proceeding. The petitioner charted the course of the proceeding by alleging the parties are tenants in common. This allegation is denied in the answer, but the consent order signed by the parties stipulates they are tenants in common. Also, the petition alleges, and the consent order confirms the allegation, that the defendant is the owner of 100 acres on the west end of the tract by reason of the devise in the will of A. L. Baker and the petitioner is the owner of the remainder of the 120-acre tract by inheritance from her mother.

It is certainly open to question whether the parties were ever tenants in common. Tenancy in common is characterized by a single essential unity—that of possession, or the right to possession of the common property. Tenancy in common does not arise when several persons own distinct portions of the same tract of land. Am.Jur., Vol. 14, sec. 16, pp. 87-88. "The general rule seems to be that when the will locates the lands devised * * * with such certainty that a surveyor can take the will, and locate them without other aid, then the devisees would hold in severalty, and not as tenants in common." Midgett v. Midgett, 117 N.C. 8, 23 S.E. 37, 38; Mitchell v. Hoggard, 108 N.C. 353, 12 S.E. 844. "Tenancy in common in land is necessary basis for maintenance of special proceeding for partition." Murphy v. Smith, 235 N.C. 455, 70 S.E.2d 697, 702; Gregory v. Pinnix, 158 N.C. 147, 73 S.E. 814; G.S. §§ 46-1, 46-3.

While we call attention to the form of tenancy in order that the Court may not be understood as agreeing that the parties are tenants in common, yet by the petition, the consent order, and the theory upon which both parties tried the case, they are estopped to deny that they are tenants in common and consequently they cannot contest the validity of the proceeding.

The petitioner's real objection is that the commissioners did not properly survey and locate the north and south perimeter lines. She contended that Watery Branch on the north was in fact a swamp and the thread of the stream is now south of its location at the time the original tract was surveyed; and that the Hopkins Chapel Road on the south has been relocated and is now north of its original location. These changes, she contended, had the effect of causing the dividing line to be located farther east than it should have been, thus reducing the acreage left to her. She contended marked lines were found corroborating her claim. She offered parol evidence of these changes in the outside lines.

The defendant, on the other hand, contended there had been no change either in Watery Branch or in the Hopkins Chapel Road since the execution of the Baker will under which document both claim title. The defendant offered parol evidence to support his contention.

Judge Hobgood found facts, stated his conclusions of law, and rendered judgment confirming the report and fixing the dividing line between the lands of the parties. The plaintiff appellant did not take any exceptions in the course of the trial. However, at the time judgment was signed she gave notice of appeal in which she attempted to take exception to the findings of fact and conclusions of law. They are in such general terms as do not comply with the Rules of Practice in the Supreme Court, 221 N.C. 546, see Rules 19 (3) and 21; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829. However, the appeal itself is an exception to the judgment and raises the questions (1) whether the facts found are sufficient to support the judgment, and (2) whether errors appear upon the face of the record. Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595; Ellis v. Atlantic Coast Line R. Co., 241 N.C. 747, 86 S.E.2d 406; Fidelity & Casualty Co. of New York v. Green, 200 N.C. 535, 157 S.E. 797.

The findings of fact cover five pages of the record. They are abundantly sufficient to support the judgment. If error appears in the record, it was induced by the type of proceeding brought by the petitioner and the theory upon which the trial was conducted, and by the consent order entered providing for partition. Both parties are estopped to deny the validity of the proceeding, which has been both long and expensive. This case and Mitchell v. Hoggard, supra, are strikingly similar, both in the facts and the questions of law involved. The concluding paragraph in the opinion of Merrimon, C. J., in the latter case is appropriate here [108 N.C. 353, 12 S.E. 845]: "It is true, as we have seen, that the court erroneously said on the trial that the parties were tenants in common of the land; but the opinion thus expressed was immaterial and not at all pertinent. It did not, in its nature, mislead or distract the minds of the jury as to the issue submitted to them. It had no application. It is not suggested, nor does it appear, that it did. It was harmless, and therefore not ground for a new trial."

The judgment of the Superior Court of Wake County is

Affirmed.

JOHNSON, J., not sitting.