Pipkin v. . Pipkin ( 1897 )

One of the numerous and complicated exceptions filed by the defendant J. W. Pipkin to the first report of the commissioners last appointed, which was overruled by the Clerk — whose action was sustained by the Judge presiding, at the August Term of the Superior Court following — is meritorious, and ought to have been sustained.

The exception was made to the failure of the commissioners to allot to the defendant his share, that part of the real estate of his deceased father which the defendant had improved and made more valuable than the other part. It is well settled that in partition proceedings where one tenant in common has improved a part of the land, he is not entitled to have it allotted to him at a valuation made without (162) regard to the improvement. Cox v. Ward, 107 N.C. 507; Colletv. Henderson, 80 N.C. 337. Another exception was made by the defendant to the second report of the commissioners of date of 5 September, 1895, upon the hearing of which, on appeal from the Clerk's decision, at the November Term following, the Judge presiding made an order that the matter be recommitted to the commissioners without prejudice, and that they report the evidence taken by them and their findings of fact to the Court. The commissioners afterwards made a report under this order without the evidence or their findings of facts. The defendant excepted to the report because of the failure of the commissioners to obey the order of the Court. The exception was overruled by his Honor, and the entire action of the commissioners, in reference to the partition of the land, confirmed. There was error in this. The report of the commissioners showed upon its face a failure on their part to perform the duties required of them by the Court's order. They reported no evidence, they found no facts; they simply recited conclusions.

The commissioners will be instructed by the Court below to report (1) Whether or not the defendant has improved any particular part of the land held in common with the other parties in this proceeding, and if he has, why the same was not allotted to him in the partition. (2) The commissioners will be ordered also to proceed with the duty required of them in the order made by Judge Timberlake, at the November Term, 1895, to report the evidence heretofore taken on the question as to whether or not the defendant had been allotted lands about which there is, or may be, dispute, as to the title thereto; and to hear and report any new testimony on this matter which may be offered by the defendant, or any of the parties interested, and their findings of (163) facts. The statement of the case on appeal has contained a great many errors of dates, misplacement of exhibits and errors in names of parties.

It is complicated, further, with the difficulties attendant upon the restoration of the substance of the pleadings, which were lost by fire, and where the record had to be supplied by a reference to a commissioner for that purpose, because of contradictions and inconsistencies between the statement of the defendant and those of the plaintiffs. We think, however, that we have gotten at the bottom of the controversy, and that substantial justice has been done to the parties in the decision which we have made. There was error in the proceedings in the respects pointed out in this opinion.

Error.