Opinion
(August Term, 1848.)
1. The law gives to tenants in common an absolute right to have their land divided.
2. A decree for partition should show on its face the particular land to be divided, and the portion or share of the land to which each of the tenants is entitled.
APPEAL from the Superior Court of Law of HENDERSON, at Spring Term, 1848, Battle, J., presiding.
Baxter for plaintiff.
N.W. Woodfin for defendant.
The petition is filed to procure a division of land. It sets forth that the petitioners are tenants in common in fee simple with the defendant, Gash, in three several tracts of land in the county of Henderson, on the waters of the French Broad River. The boundaries of the tracts are set forth in the exhibits filed with the petition, and the tracts are stated to contain 1,300 acres. The petitioners state that Alford, Augustus, Silas, Asais, Ephraim and Scion Ledbetter, who are infants and sue by their guardian, Charles Stagle, and John and Ann and Joseph Ledbetter and Ambrose Litton and his wife, Elizabeth, are entitled each to one-fifteenth of said land, and Richard Ledbetter and the defendant, Gash, are entitled to or own five-fifteenths in equal moieties. They pray a partition of the land so that each may hold his share or portion in severalty, as it will be to their interest, and pray for the appointment of commissioners for that purpose, according to law. The answer of Gash admits that he is a tenant in common, with the petitioners, of the lands set forth, and in the proportions stated. It denies that it will be to the interest of the parties to have partition (463) made, but states that the land ought to be sold and the proceeds divided. To this purpose he is about to file a petition in equity.
The subpoena in this case was returned to the Spring Term, 1848, of the Superior Court of Law for Henderson County, at which term the defendant filed his answer, and the court adjudged there should be a partition as prayed for, and an order was made at the same time appointing commissioners to divide and allot the land, and from this judgment the defendant appealed. The defendant in his answer opposes the granting of the prayer of the petitions, upon the ground that it will be more to the interest of all the parties to have the land sold and the money divided, because of the smallness of one of the tracts and the small proportion which the good land bears to the poor in another. With this objection we have nothing to do. The law gives to the tenants in common an absolute right to have their land divided, and the plaintiffs here were entitled to have their judgment for the appointment of commissioners at the first term to which the defendants was brought in, the tenancy in common being admitted in the answer. His Honor, therefore, committed no error in adjudging that the petitioners were entitled to partition in the lands, and appointing commissioners for that purpose; but there was error in the form of drawing up the judgment. It should show upon its face the particular land to be divided and the portion or share of the lands to which each of the petitioners and the defendant was entitled, and not leave those inquiries to the commissioners. In this case, according to the petition and the answer, the six minor heirs and the petitioners John, Ann and Joseph Ledbetter and Ambrose Litton and his wife, Elizabeth, are each entitled to one-fifteenth of the lands, and the petitioners (464) Richard Ledbetter and the defendant, Gash, are, entitled, each, to one-sixth part or interest in the whole. The only ground upon which the petition was opposed before us was that the court erred in hearing the case at the first term at which the answer was put in. We have already answered the objection. The proceedings in partition are summary, and made so with a view to save time and expense.
For these reasons the judgment must be reversed and the cause remanded.
PER CURIAM. Ordered accordingly.
Cited: Alsbrook v. Reid 89 N.C. 153; Alexander v. Gibbon, 118 N.C. 804.