Southerland v. Potts

67 S.E.2d 51 (1951) 234 N.C. 268

SOUTHERLAND et al.
v.
POTTS.

No. 237.

Supreme Court of North Carolina.

October 10, 1951.

Edwin C. Ipock, Goldsboro, for defendant-appellant.

Dees & Dees, Goldsboro, for plaintiffs-appellees.

DENNY, Justice.

We deem it unnecessary to discuss the legal effect of the deed from John Kornegay to Bryant Southerland and his wife, Martha C. Southerland, since regardless of its provisions, Martha C. Southerland became vested with a fee simple title thereto, subject only, in any event, to the life estates conveyed in the above deed, by virtue of the allotment to her of the identical lands described in the deed in the division of her father's estate.

The defendant contends, however, that the commissioners in the special proceeding to divide the lands of John Kornegay, deceased, did not allot the reversionary interest of John Kornegay in the land described in his deed dated July 28, 1883, to his daughter, Martha C. Southerland and her husband, Bryant Southerland. This contention is without merit. The decree confirming the allotment made by the commissioners directed that the report be registered, and further decreed that the report and the judgment entered pursuant thereto "shall vest and convey the title to the several parties in their respective shares accordingly by the metes and bounds set out in said report as effectively as if several conveyances were made by the parties to each other in severalty." Such a judgment is binding on all parties to the proceeding and those in privity with them. 40 Am.Jur., Partition, Section 131, page 110, et seq.; Carter v. White, 134 N.C. 466, 46 S.E. 983; Buchanan v. Harrington, 152 N.C. 333, 67 S.E. 747; Pinnell v. Burroughs, 168 N.C. 315, 84 S.E. 364; Southern State Bank v. Leverette, 187 N.C. 743, 123 S.E. 68, 70; Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554.

A proceeding for partition dissolves the unity of possession, and while it does not pass title, it vests in severalty the title to each of the tracts or parcels of land allotted to the respective tenants and operates "as an estoppel upon the parties to the proceeding and those in privity with them." Southern State Bank v. Leverette, supra.

Moreover, it must be conceded that upon the death of John Kornegay, intestate, a one-seventh undivided interest in his lands passed to his daughter, Martha C. Southerland, under our canons of descent, G.S. § 29-1. She accepted the allotment of the lands previously conveyed to her and her husband for life, and to her bodily heirs for life, as her share of her father's estate. Consequently, when she and her husband died intestate, not having disposed of any interest in said lands, her bodily heirs, to wit: her children, John N. Southerland and Willie Southerland Jones, took a fee simple title to the premises.

The judgment of the court below is

Affirmed.