Keener v. . Den , 73 N.C. 132 ( 1875 )

Settle, J.

No Court has the right to violate a contract, nor has the Clerk or Probate Judge the right to enforce the specific performance of a contract; that power is vested exclusively in the Superior Court, setting in term.

The special proceedings prescribed in Battle’s Revisal, chap. SI, for obtaining the actual partition of land, between tenants in common, or the sale thereof when actual partition is impracticable, do not apply to a case where tenants in common have, by contract, agreed upon terms, as to the manner and extent of the partition, both for agricultural or mining interests, the location .of the dividing fence, the establishment of the lines, •the quantity of bottom and high land that each is to receive, and the mode of ascertaining and adjusting any inequality of value of the separate tracts.

In order to enforce such a contract resort must be had to an action for specific performance of which, as we have said, the -Clerk has no jurisdiction.

The judgment of the Superior Court is affirmed.

Pee Cueiam.

Judgment affirmed.