Roberts v. Barlowe

132 S.E.2d 483 (1963) 260 N.C. 239

Madge Barlowe ROBERTS and husband, W. M. Roberts,
v.
Frank W. BARLOWE and wife, Jerry Barlowe.

No. 166.

Supreme Court of North Carolina.

September 25, 1963.

Hollowell & Stott, Gastonia, for plaintiffs.

Mullen, Holland & Cooke, Gastonia, for defendants.

PER CURIAM.

Proceedings for partition are equitable in nature, and in a suit for partition a court of equity has power to adjust all equities between the parties with respect to the property to be partitioned. A sale for partition may be ordered and the rights of the parties adjusted from the proceeds of the sale. Henson v. Henson, 236 N.C. 429, 72 S.E.2d 873. See also 14 Am.Jur., Cotenancy, ss. 43-46, pp. 109-113; 68 C.J.S. Partition § 136, pp. 212, 213.

Since the court below made no order affecting the distribution of the proceeds of the sale, the judgment directing a sale of the lands and appointing a commissioner will not be held erroneous. But the male defendant, having asserted his claims before an order of distribution was made, is entitled as a matter of right to have his claims determined before an order of distribution of the proceeds of the sale is entered. Lewis, Ex parte, 42 N.C. 4.

Affirmed.