Gregory v. . Gregory , 69 N.C. 522 ( 1873 )

Rodman, J.

The principles governing this case are plain and familiar; the only difficulty is in applying them to an unusual state of facts:

1. Upon the death of Hosea Gregory, his estate in one-undivided third of the land descended to his heirs — John and Nancy, the surviving co-tenants and the plaintiffs in this proceeding, who thus became sole seized. Their counsel contends that because the widow and administrator of Hosea had no estates in the land, the widow who united both characters in herself, was improperly made a party. He also-contends that inasmuch as the two plaintiffs were thus exclusively “ domini litis,” they were entitled by the aid and ministry of the Court to make any such partition as they could make by deeds inter se. That a partition so made- and sanctioned by the Court would affect no persons not parties. This proposition assumes that a Court in an action concerning property will look only to estates in the property, and not to any rights or interests which are not estates. This may in general be true where the persons having the estates may fairly be considered to represent all the rights- .and interests affecting them. So in suits respecting the personal property of a decedent, the administrator is generally deemed a sufficient representative of the creditors •-and distributees of the deceased. In an action by a widow for divorce, the heirs or other terre tenants are deemed sufficiently to represent the creditors of the deceased. But in all such cases, whenever it appears (as it did in, the present) that the supposed representative has an interest adverse to that which he represents, the real party in interest may demand to be made a party.

Such was always the rule in equity, though not at law. Plence,'although a judgment for partition among the heirs of a decedent, if it appears to have been made by fraud and collusion to injure his estate, will be set aside at the instance •of his widow and creditors; yet prima facie it is valid, and would be confirmed by their acquiescence.

To diminish litigation by preventing the necessity of a •second action to set aside the first judgment, and to adjust .and determine all interests in the subject matter by a single suit, as far as may conveniently be done, the C. C. P., sec. 61, 62, requires or permits all persons having interests to be made parties. In our opinion the widow was properly made .a party in both her characters.

2. Assuming that the land was cajDable of an actual partition, without injury to the interest of any party, as it probably would have been if there had been no building on it, to give a greatly disproportionate value to the part on which it stood; then the partition into three equal parts would have been proper. The assignment of those parts by lot would also have been proper. The claim of the •widow of ITosea to have the part on which the house is, •assigned as his share of the estate, in order that she may have the house assigned to her in her dower, cannot be maintained. Her husband was not sole seized of the house, :,nor did he have any exclusive or superior right to it on a partition in his life timé. As his doweress she is pro tanta his representative, and cannot have any greater rights than he had. Her right is to one-third of the value of her husband’s third for her life.

3. The principal question is, whether the Court below should not have held that under the circumstances, an actual partition could not be made without injury to some or all of the parties interested, and upon that ground have ordered a sale for partition.

Every co-tenant is entitled of right to an actual partition, if it can be made without injury to some or all of the parties interested. The presumption in every case is, that it •can be so made until the contrary appears. When the contrary does appear, it is the duty of the Court to order a sale. Acts 1868-'69, ch. 122, sec. 13, p. 314.

The area of the land in question is twelve and three-fourths acres. The value of the whole as reported by the commissioners who made the partition is $199.40. If divided into three parts of equal area, that share on which the buildings stand would be worth $144.15, and the other shares respectively, $34 and $21.26. An equal share in value would he $66.46.

We do not mean to say that as an universal or even as a general rule, the fact that land cannot be divided into lots .of equal area and nearly equal values, is a sufficient reason for a sale. Equality of area may generally be disregarded if a reasonable approximation to equality in value can be .attained. But if, as in the present case, no reasonable approximation to an equality of values can be attained without cutting up a dwelling, only l§,rge enough for the moderate accommodation of one family, between two or more persons, it is a strong reason against an actual partition, and in favor of a sale. Neither can it be said that anything* like an exact equality of value of shares is necessary on an actual partition. The extent to which a variance from ex act equality is reasonable and allowable and will not amount to a controlling argument for sale, will depend on the circumstances of each case, and no definite rule can be laid down. This observation, however, may be useful; if one share be very greatly in excess of another, the assignee of the most valuable share is compelled in effect to buy it at an arbitrary and perhaps an extravagant valuation, while the assignee of the least valuable share is compelled to sell a considerable part of his estate at a value perhaps greatly inferior to its true one. To avoid the hazard of such evils the Legislature give the Courts a power to order a sale in proper cases.

In the present case, an actual partition with a reasonable equality of values cannot be made without dividing the dwelling, and thus impairing its value. An actual partition in which there is a gross inequality of values, is generally injurious to some party. In the partition made in this case the assignee of the most valuable share would receive in land two and one-fifth times his equal share, and the assignee of the least valuable share would receive in land less than one-third of his equal share. We are of opinion that an actual partition would be injurious, and that an order of sale is proper. After a sale of the whole land, the widow of Hosea may have dower assigned her out of his one-third, as provided for in the Act of 1868-69, chap. 122, sec. 18, and the residue of that third, (which may include the value of the reversion after the widow’s dower,) will go to his administrator, to be administered in the usual course. Judgment reversed. An order may be drawn in conformity with this opinion; or if the parties prefer, the case may be remanded to the Superior Court of Pasquotank, to be there proceeded in according to law.

Pjsr Curiam. Judgment reversed.