Skidmore v. Austin

136 S.E.2d 99 (1964) 261 N.C. 713

Eleanor Poplin SKIDMORE and husband, Harry P. Skidmore, and Lessie Poplin Carpenter, Widow, Petitioners.
v.
Flora Poplin AUSTIN and husband, Crawford Austin et al., Defendants.

No. 455.

Supreme Court of North Carolina.

April 29, 1964.

Ernest H. Morton, Jr., Albemarle, for appellant.

Childers & Fowler, Gastonia, and Richard L. Brown, Jr., Albemarle, for defendant appellees.

RODMAN, Justice.

Appellant contends the order of 1 February 1962 entered while Mrs. Poplin was alive, is a final judgment fixing the portion of the purchase money each of the parties should receive. Based on that premise he makes the further contention that the judgment, if wrong, is only erroneous; and if wrong can only be corrected by appeal.

The fact that the order signed by the Clerk on 1 February 1962 is entitled "Judgment and Order of Sale" is unimportant. A judgment may be either interlocutory or a final determination of the rights of the parties. G.S. § 1-280. It is interlocutory when subject to change by the court during the pendency of the action to meet the exigencies of the case. Russ v. Woodard, 232 N.C. 36, 59 S.E.2d 351. Speaking with reference to the finality of orders in partition proceedings, Barnhill, J. said in Hyman v. Edwards, 217 N.C. 342, 7 S.E.2d 700:

"All orders in a proceeding for the partition of land other than the decree of confirmation are interlocutory. (Citations.)

"Until the confirmation of the report in a special proceeding for partition the whole matter rests in the judgment of the clerk, subject to review by the Judge, whose action is binding on us unless an error of law has been committed. (Citation.) An order appointing commissioners is preliminary and interlocutory and the judgment of the Judge affirming the clerk in ordering actual partition is not res judicata and is not appealable. (Citations.)

"It is the decree of confirmation which is the final judgment."

The order of 1 February 1962 directed the sale of both the life interest and the interest in remainder because such sale was seemingly in the best interest of the parties. If it developed before the sale, made pursuant to such order, was confirmed that the best interest of the parties would not be served by such sale, the Clerk, in the exercise of his discretion, could have then ordered an actual partition among the remaindermen. The life tenant could, if competent, have sold her interest; if incompetent and for her best interest, the court could have ordered her life estate sold. The life tenant would only be entitled to the proceeds of the sale of her estate.

Mulford v. Hiers, 13 N.J.Eq. 13, well illustrates and explains the reason for the conclusion here reached: There, one Garrett Hiers, died intestate leaving a widow and six children, four by the widow and two by a prior marriage. Petition for partition was filed. The court found that an actual partition could not be had without prejudice to the rights of the parties. It ordered a sale including the widow's right of dower. The widow consented to the sale. Part of the properties were sold in March. Those sales were confirmed in April. The residue of the lands was sold in November after the death of the widow in October. The children of the widow insisted that their mother was entitled to have the value of her dower rights computed and paid from the proceeds of the sale of all of the properties. The children of the first marriage insisted that, as the widow died prior to the order of distribution, no payment could be made from the proceeds of the sale of any parts of the properties because of her dower interest. The court, in response to the divergent contentions of the heirs at law, said:

"So far as relates to the proceeds of the sale of that portion of the land which was sold after the death of the widow, it is clear that her children can have no claim in virtue of her right of dower. It is true that the estate in dower of the widow was, by decree of the court, ordered to be sold, but in point of fact the estate was determined by the death of the widow before the sale. No sale of the dower right was ever made, and consequently there are no proceeds of the sale which the widow could be entitled to have invested for her benefit, or in lieu of which she could receive a sum in gross.

"But in regard to the sales which were made and confirmed in the lifetime of the widow, her children are entitled to receive out of the proceeds of the sale a just and reasonable satisfaction for their mother's interest." See also 33 Am.Jur. 771; Annotation: 102 A.L.R. 969.

To hold that the quoted language required payment for an estate which terminated several months prior to the sale would do violence to the manifest intent of the order.

Affirmed.