CASE NOTES

This section does not authorize a partition or sale of the undivided interest of some of the cotenants in an entire tract of land, leaving the undivided interest of other cotenants unaffected. Brooks v. Austin, 95 N.C. 474 (1886); Patillo v. Lytle, 158 N.C. 92, 73 S.E. 200 (1911).

Section Inapplicable Where Parties Agree to Partition of Entire Tract. - Where all parties agree that the entire tract can be partitioned without injury to any of the parties in interest, the provisions of this section and G.S. 46-22 are not applicable to the proceeding. Horne v. Horne, 261 N.C. 688, 136 S.E.2d 87 (1964).

Superior Court Did Not Abuse Its Discretion By Confirming Partition. - Superior court did not abuse its discretion by confirming the partition of property because all the parties were before the court, as each party signed a consent order for in kind division of the unitary acres, and it was reasonable for the court to consider the consent to also include the sale of the separated tract. The land was allocated based upon unequal shares of ownership through transfers and acquisitions, and each tract was valued differently due to the differing values of the land and the percentage of ownership to be allocated. Donnell-Smith v. McLean, 264 N.C. App. 164, 825 S.E.2d 672 (2019), review denied, 837 S.E.2d 894, 2020 N.C. LEXIS 140 (N.C. 2020).

§ 46-17: Recodified as G.S. 46A-55(a) by Session Laws 2020-23, s. 2(s), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-17.1: Recodified as G.S. 46A-54 by Session Laws 2020-23, s. 2(t), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-18: Recodified as G.S. 46A-55(b) by Session Laws 2020-23, s. 2(u), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

CASE NOTES

"Mistake, Fraud or Collusion". - Since an opportunity for correcting ordinary error or irregularities is provided to a party by the filing of exceptions under this section and by appeal from the decree of confirmation in G.S. 1-272 [see now G.S. 1-301.1 et seq.], it should be clear that the legislature did not intend the word "mistake" in this section to apply to ordinary error and irregularities by the commissioner or the clerk; rather, the words "mistake, fraud or collusion" in this section, construed in pari materia, are applicable to substantial defects or omissions in the proceedings which probably would not be discovered in time to assert rights within the 10-day limit for filing exceptions to the report of the commissioners or to appeal from the confirmation order, and which would likely result in the denial of a substantial right if not corrected. Macon v. Edinger, 49 N.C. App. 624, 272 S.E.2d 411 (1980), rev'd on other grounds, 303 N.C. 374, 278 S.E.2d 256 (1981).

This section essentially governs two situations. First of all, in partition proceedings where there is no mistake, fraud, or collusion alleged, a party has 10 days from the filing of the commissioner's report to file an exception to the proposed partition. If no exception is filed, the report is confirmed. The second part of this section covers situations where a party is claiming that mistake, fraud, or collusion has occurred. In this instance, a party, even after confirmation, may impeach the proceedings. Brown v. Miller, 63 N.C. App. 694, 306 S.E.2d 502 (1983), cert. denied, 310 N.C. 476, 312 S.E.2d 882 (1984).

Proceedings Interlocutory until Confirmation. - Until the decree of confirmation by the judge, the proceedings for the partition of lands are not final, but interlocutory, and rest in his discretion. Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76 (1911).

All orders of the clerk or judge are interlocutory except a final judgment or decree confirming the report of the commissioners. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

Time for Filing Exceptions. - Exceptions to the report of the commissioners appointed to make partition of land must be filed within 20 (now 10) days after the report is filed. Floyd v. Rock, 128 N.C. 10, 38 S.E. 33 (1901).

Filing of Exceptions Not Untimely. - Where, within the required time after filing the report, defendant notified the clerk that he desired to file exceptions, whereupon the clerk made a memorandum that defendant had objected to the report, and later amended exceptions, setting out various grounds why the report should not be confirmed, were filed with the clerk without objection, it was held error to confirm the report on the ground that no exception had been filed within the statutory time. McDevitt v. McDevitt, 150 N.C. 644, 64 S.E. 761 (1909).

Effect of Failure to Object. - Where no exceptions were filed and no objections made, plaintiff was entitled to a decree of confirmation as a matter of law. Roberts v. Roberts, 143 N.C. 309, 55 S.E. 721 (1906); Macon v. Edinger, 49 N.C. App. 624, 272 S.E.2d 411 (1980), rev'd on other grounds, 303 N.C. 374, 278 S.E.2d 256 (1981).

Determination of Whether to Confirm. - If exceptions are filed in apt time, whether the report of the commissioners should be confirmed is for determination by the clerk and, upon appeal from his order, by the judge. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

Superior court did not abuse its discretion by confirming the partition of property by a commissioners' report because all the parties to the action were properly included and before the court, as each party signed a consent order, and the land was allocated based upon unequal shares of ownership through transfers and acquisitions, and each tract was valued differently due to the differing values of the land and the percentage of ownership to be allocated. Donnell-Smith v. McLean, 264 N.C. App. 164, 825 S.E.2d 672 (2019), review denied, 837 S.E.2d 894, 2020 N.C. LEXIS 140 (N.C. 2020).

Clerk Has Jurisdiction Initially to Pass upon Exceptions. - Clearly, the clerk has authority and jurisdiction, initially, to pass upon exceptions to the report of the commissioners in a special proceeding for partition. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

Powers of Clerk in Hearing on Exceptions. - In a hearing on exceptions to the report of the commissioners, the clerk may (1) recommit the report for correction or further consideration, or (2) vacate the report and direct a reappraisal by the same commissioners, or (3) vacate the report, discharge the commissioners, and appoint new commissioners to view the premises and make partition thereof. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

The clerk is without authority to alter the report that is filed, either by changing the division lines or by enlarging or decreasing the owelty charge assessed by the commissioners. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

Right of Clerk to Set Aside Former Order. - Where it appeared of record that the clerk of the court in proceedings to partition lands had rendered a judgment in the plaintiff's favor, and had set it aside on the defendant's motion made before him 17 months thereafter upon allegation of fraud in its procurement, and that the plaintiff had fraudulently prevented the defendant from appearing and defending, to which the plaintiff did not except, the plaintiff's motion in the superior court, in the cause transferred, for judgment in his favor upon the whole record, could not be allowed. The clerk was within the provisions of this section in setting aside his former order in plaintiff's favor, on defendant's motion, at the time it was made before him. Turner v. Davis, 163 N.C. 38, 79 S.E. 257 (1913).

Judge May Confirm Report or Vacate It and Enter Appropriate Interlocutory Orders. - In a de novo hearing before the judge, where the question is whether the report of the commissioners should be confirmed, the judge may confirm or he may vacate and enter appropriate interlocutory orders. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

Where the clerk had confirmed the report of the commissioners, the question before the judge was whether the division made by the commissioners was fair and equitable. If so, a final judgment or decree confirming the report of the commissioners should have been entered. If not, the report of the commissioners should have been set aside; and, if set aside, the court by interlocutory order, should have ordered a new division by commissioners or, if the facts justified, a partition sale. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

Judge May Not Order Partition Different from That Made by Commissioners. - The judge may not, based on his findings as to what would constitute an equitable division, adjudge a partition of the land different from that made by the commissioners. Allen v. Allen, 258 N.C. 305, 128 S.E.2d 385 (1962).

Effect of Findings of Judge. - Where an actual partition of lands has been ordered, whether the division made by the commissioners was fair and equitable or unequal in value is a question of fact to be determined by the judge of the superior court upon an appeal from a judgment of the clerk affirming the report of commissioners, and the findings of the judge are conclusive and binding if there is any evidence in the record to support them. West v. West, 257 N.C. 760, 127 S.E.2d 531 (1962).

Petitioners Not Required to State Specific Grounds. - Where petitioners excepted to the commissioners' report under this section, the trial court did not have the authority to dismiss the appeal due to petitioners' failure to state specific grounds why the commissioners' report should not be confirmed. Jenkins v. Fox, 98 N.C. App. 224, 390 S.E.2d 683 (1990).

Appeals May Be to Different Judges. - Where appeals from the clerk in proceedings for partition are made successively to different judges, a judge before whom a later appeal comes may set aside or modify a former interlocutory order, it not being required for that purpose that the same judge should have passed upon the former appeals. Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76 (1911).

Jurisdiction of Judge in Chambers. - A judge in chambers has jurisdiction of appeals from the report of commissioners appointed in special proceedings to partition land. McMillan v. McMillan, 123 N.C. 577, 31 S.E. 729 (1898).

Confirmation Is Error Where Commissioners Fail to Carry Out Orders. - Where commissioners fail to carry out the orders of the court in some material respect, it is error to confirm their report, especially if it appears that a party or parties have probably suffered injury by reason of such failure. Allen v. Allen, 263 N.C. 496, 139 S.E.2d 585 (1965).

Resale After Confirmation. - After confirmation a resale may be ordered for sufficient cause shown; but this should be upon petition or notice to the purchaser who has acquired equitable rights under the first confirmation. Ex parte White, 82 N.C. 377 (1880).

Statute of Limitations. - Where the commissioners to divide lands held by tenants in common award owelty to one of them to equalize his share with the other, the 10-year statute of limitations began to run from the confirmation of the report by the clerk, approved by the judge, and the fact that the clerk had not docketed the judgment in the 7 years after confirmation, as between the parties having at least constructive notice of the proceedings, did not alone repel the bar of the statute. Cochran v. Colson, 192 N.C. 663, 135 S.E. 794 (1926).

Applied in Hewett v. Hewett, 38 N.C. App. 37, 247 S.E.2d 23 (1978).

Cited in Macon v. Edinger, 303 N.C. 274, 278 S.E.2d 256 (1981); Estate of Heffner, 61 N.C. App. 646, 301 S.E.2d 720 (1983).

§ 46-20: Recodified as G.S. 46A-57 by Session Laws 2020-23, s. 2(w), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-21: Recodified as G.S. 46A-58 by Session Laws 2020-23, s. 2(x), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

CASE NOTES

Relationship to Bankruptcy Law. - Chapter 13 debtor's sister was not entitled to relief from stay to pursue a judicial partition by sale in North Carolina state court of property that she and debtor held as tenants in common where judicial economy favored partition as part of debtor's Chapter 13 case rather than through a state court proceeding that had yet to be commenced and where releasing the property from the protection of the bankruptcy court was not in the estate's best interests, as it appeared from the sister's alleged attempts to sabotage a private sale that she would prefer to obtain the property at a reduced cost through a forced judicial sale. In re Guy, 587 B.R. 475 (Bankr. E.D.N.C. 2018).

In finding that judicial economy favored partition of co-owned property as part of debtor's Chapter 13 case rather than through North Carolina state court proceeding that had yet to be initiated, court noted that debtor could immediately market property and court could consider private or public proposed sale upon only 21 days' notice to parties in interest, but delay in state court could be compounded because it could require mediation before making determination of sale and, once judicial sale was ordered, process was far less efficient under state law. Bankruptcy court liquidated property on routine basis with little or no delay and was empowered by Congress with avenues to accomplish reasonable and efficient liquidation of assets. In re Guy, 587 B.R. 475 (Bankr. E.D.N.C. 2018).

Section Is Inapplicable Where Parties Agree to Partition. - Where all parties agree that the entire tract can be partitioned without injury to any of the parties in interest, the provisions of G.S. 46-16 and this section are not applicable to the proceeding. Horne v. Horne, 261 N.C. 688, 136 S.E.2d 87 (1964).

Section Inapplicable. - Respondent claimed the trial court's order was inadequate to support an order for the sale of property under the statute regarding sale in lieu of partition, but that statute did not govern the case, as the applicable statute was regarding the sale of personal property on partition, given the leasehold interests involved. Whitesell v. Barnwell, 234 N.C. App. 471, 758 S.E.2d 898 (2014).

Tenants in common are entitled to actual partition, if it can be made without injury to any of the co-owners. Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76 (1911); Horne v. Horne, 261 N.C. 688, 136 S.E.2d 87 (1964). See Gillespie v. Allison, 115 N.C. 542, 20 S.E. 627 (1894); Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369 (1951); Batts v. Gaylord, 253 N.C. 181, 116 S.E.2d 424 (1960); Coats v. Williams, 261 N.C. 692, 136 S.E.2d 113 (1964).

Prima facie, a tenant in common is entitled, as a matter of right, to partition of the lands so that he may enjoy his share in severalty. If, however, an actual partition cannot be made without injury to some or all of the parties interested, he is equally entitled to a partition by sale. Kayann Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966).

Because land owned as joint tenants in common could be partitioned without materially impairing either co-tenant's rights, a trial court erred by ordering a sale of the land; G.S. 46-22 required a partition in kind as opposed to a sale in such circumstances. Lyons-Hart v. Hart, 205 N.C. App. 232, 695 S.E.2d 818 (2010).

And Partition in Kind Is Favored over Sale. - A tenant in common is entitled, as a matter of right, to a partition in kind if it can be accomplished equitably. That is to say, partition in kind is favored over sale of the land for division. Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, cert. denied, 295 N.C. 647, 248 S.E.2d 252 (1978).

The burden is on the party seeking sale for partition to show the necessity therefor, and where sale for partition is decreed by the court without hearing evidence or finding facts to show the right to sell, the cause will be remanded. Wolfe v. Galloway, 211 N.C. 361, 190 S.E. 213 (1937); Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369 (1951).

The burden is upon those alleging the necessity and desirability of a sale to establish the necessary requisites. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965).

The burden is on him who seeks a sale in lieu of actual partition to allege and prove the facts upon which the order of sale must rest. Kayann Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966).

The burden is upon those opposing a partition in kind to establish the necessity of a sale. Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, cert. denied, 295 N.C. 647, 248 S.E.2d 252 (1978).

The party seeking a partition by sale must show substantial injustice or material impairment of his rights or position such that the value of his share of the real property would be materially less on actual partition than if the land were sold and the tenants were paid according to their respective shares. Whatley v. Whatley, 126 N.C. App. 193, 484 S.E.2d 420 (1997).

Fact that a tenant in common is entitled to a homestead against the judgment cannot prevent a sale for partition. Holley v. White, 172 N.C. 77, 89 S.E. 1061 (1916).

A sale will not be ordered merely for the convenience of one of the cotenants. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965).

Proof of Injury to Cotenant Must Be Shown. - In the absence of any allegation, proof or finding that an actual partition cannot be had without injury to some or all of the parties, the court has no jurisdiction to order a sale. Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369 (1951).

Court Without Jurisdiction to Order Sale. - The court has no authority to order a sale of land for partition without satisfactory proof of facts showing that an actual partition will cause injury to some or all of the cotenants. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965).

By "injury" to a cotenant is meant substantial injustice or material impairment of his rights or position, such that it would be unconscionable to require him to submit to actual partition. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965); Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, cert. denied, 295 N.C. 647, 248 S.E.2d 252 (1978).

Test Is Whether Value of Share Would Be Materially Less on Partition Than on Sale. - The test of whether a partition in kind would result in great prejudice to the cotenant owners is whether the value of the share of each in case of a partition would be materially less than the share of each in the money equivalent that could probably be obtained for the whole. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965); Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, cert. denied, 295 N.C. 647, 248 S.E.2d 252 (1978).

Determinative Circumstances. - On the question of partition or sale, the determinative circumstances usually relate to the land itself, and its location, physical condition, quantity, and the like. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965).

Impairment of Rights of Cotenants Held Insubstantial. - A $2,100.00 diminution in value, or $1,050.00 per cotenant, was not a substantial or material impairment of the rights of the cotenants in property worth $280,000.00, such that an actual partition would be unconscionable. Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, cert. denied, 295 N.C. 647, 248 S.E.2d 252 (1978).

Effect of Interests of Others. - The owner of an undivided one-half interest in land cannot be denied his rights to have a partition or sale in lieu of partition because of interests which defendants, other than his cotenants, claiming under him, have acquired in and to his undivided interest. Barber v. Barber, 195 N.C. 711, 143 S.E. 469 (1928).

Effect of Trust Created by Another Cotenant. - The right of a tenant in common to have the lands sold for a division, under this section, cannot be defeated by a trust creating an interest in the lands by another of the tenants. Barber v. Barber, 195 N.C. 711, 143 S.E. 469 (1928).

Life Estate Does Not Bar Sale of Reversion or Remainder. - The existence of a life estate is not, per se, a bar to a sale for partition of the remainder or reversion thereof, since, for the purpose of the partition, tenants in common are deemed seized and possessed as if no life estate existed. The actual possession of the life tenant, however, cannot be disturbed so long as it exists. Kayann Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966).

Whether land should be divided in kind or sold for partition is a question of fact for decision of the clerk of superior court, subject to review by the judge on appeal; it is not an issue of fact for a jury. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965).

Clerk's Role in Partition. - The controverted fact arising on the pleadings as to the advisability of a sale for partition or an actual division was not an issue of fact but a question of fact for the decision of the clerk, subject to review by the judge on appeal. Ledbetter v. Piner, 120 N.C. 455, 27 S.E. 123 (1897); Vanderbilt v. Roberts, 162 N.C. 273, 78 S.E. 156 (1913).

Proof of Injury to Cotenant Must Be Shown. - Whether or not, in a proceeding instituted under G.S. 46-3 for partition of the land of tenants in common, there shall be an actual partition or sale for partition involves a question of fact to be determined by the court. In such proceedings, an allegation that the land is incapable of actual division without injury to some or all of the tenants in common raises a question of fact for the trial judge, and not an issue of fact for the jury, and the judge has the power to order a sale for partition. Barber v. Barber, 195 N.C. 711, 143 S.E.2d 469 (1928).

The court must find the facts required by this section in order to support a decree of sale for partition. Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341 (1942).

Failure of Court to Make Required Findings. - Where the trial court failed to make the findings of fact required by this section for partition by sale, that actual partition would result in one cotenant's share having less value than the share he would receive were the property partitioned by sale, and that actual partition would materially impair a cotenant's rights, since there was also no evidence in the record which would support such findings, the trial court's order of partition by sale was reversed. Partin v. Dalton Property Assocs., 112 N.C. App. 807, 436 S.E.2d 903 (1993).

In an action seeking the sale of land for partition, when a trial court did not make the findings enumerated in G.S. 46-22(b) and (c), it was nonetheless proper to grant the petition because the party against whom the proceeding was filed made judicial admissions before the clerk of the trial court, and on review before the trial court that an actual partition of the land was not possible without substantial injury to the interested parties and failed to deny such allegations in the petition, so such findings were unnecessary. Sheffer v. Rardin, 208 N.C. App. 620, 704 S.E.2d 32 (2010).

Reversal and remand were necessary because a trial court erred in its determination that an actual partition of the parcels could not be made without causing substantial injury to one or more of the interested parties as the court failed to make the specific findings of fact necessary to support an order for partition by sale of the parcels. Particularly, the court failed to make specific findings of fact as to the value of each individual parcel and the value of each share of certain parcels were those parcels physically partitioned. Solesbee v. Brown, 255 N.C. App. 603, 805 S.E.2d 183 (2017).

Conclusive Effect of Findings of Trial Judge. - The findings of the trial judge with regard to whether there should be a partition in kind or sale are conclusive and binding if supported by competent evidence; the judge has discretion in making the determination, and his decision will not be disturbed absent some error of law. Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, cert. denied, 295 N.C. 647, 248 S.E.2d 252 (1978).

Holders of Judgment Liens Not Necessary Parties. - The holders of judgment liens on land sought to be partitioned or on undivided interests in such land are not necessary parties to the proceeding to partition the land by sale. Washburn v. Washburn, 234 N.C. 370, 67 S.E.2d 264 (1951).

The trustee and beneficiaries under a trust created in lands by a tenant in common are proper parties to the proceedings for a sale for division. Barber v. Barber, 195 N.C. 711, 143 S.E. 469 (1928).

Right of Wife of Cotenant to Resist Partition. - The wife of a tenant in common has an interest in his portion of the lands or the proceeds of the sale thereof, for division, contingent upon her surviving him, and is a proper party to the proceedings for partition, under this section or G.S. 46-3, with the right to be heard when the lands are sold for division, in order to protect her contingent interests in the proceeds of the sale. But she cannot resist the plaintiff's right to a partition nor challenge the power of the court to order sale for partition. Barber v. Barber, 195 N.C. 711, 143 S.E. 469 (1928).

A wife having a dower interest in property held by her husband as tenant in common could not defeat a sale for partition. Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 1 S.E.2d 853 (1939).

Purchase of Land by Tenant in Common. - A tenant in common suing to partition the premises controlled by him as agent for the cotenants cannot, on being appointed commissioner to sell the premises, purchase them at the sale or procure anyone to do it for him, and he cannot speculate for his own benefit or do any act detrimental to the interest of his cotenants. Tuttle v. Tuttle, 146 N.C. 484, 59 S.E. 1008 (1907). See also, Credle v. Baugham, 152 N.C. 18, 67 S.E. 46 (1910).

Interest of Trust Beneficiaries Attaches to Proceeds. - The interest of the beneficiaries under a deed of trust upon the interest of a tenant in common in land will, upon its sale under this section, attach to the proceeds and be fully protected in the final judgment or order in the proceedings. Barber v. Barber, 195 N.C. 711, 143 S.E. 469 (1928).

Determination of Claims Before Distribution. - A defendant who asserted his claims before an order of distribution was made was entitled as a matter of right to have his claims determined before an order of distribution of the proceeds of the sale was entered. Roberts v. Barlowe, 260 N.C. 239, 132 S.E.2d 483 (1963).

No Waiver of Right to Partition. - Evidence supported the trial court's finding that there was no written agreement between the husband and wife concerning their rights in certain property, and there was no particular conduct or action taken by either party affecting ownership of the property or the husband's right to seek partition of the property at a later date; no implied-in-fact contract was ever formed between the parties that would have made the wife the sole owner of the property or waived the husband's right to seek partition. Ward v. Ward, 252 N.C. App. 253, 797 S.E.2d 525 (2017).

Appellate Review. - The action of a judge of the superior court in setting aside the report of partition commissioners advising actual partition and ordering a sale is not reviewable, unless an error of law was committed. Albemarle Steam Nav. Co. v. Wovell, 133 N.C. 93, 45 S.E. 466 (1903); Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76 (1911).

Since a tenant in common has the right to actual partition unless it is made to appear by satisfactory proof that actual partition cannot be made without injury to some or all of the parties interested, an order for sale for partition affects a substantial right, and an appeal will lie to the Supreme Court from such order entered by the judge on appeal from the clerk. Hyman v. Edwards, 217 N.C. 342, 7 S.E.2d 700 (1940).

Applied in Talley v. Murchison, 212 N.C. 205, 193 S.E. 148 (1937); Clapp v. Clapp, 241 N.C. 281, 85 S.E.2d 153 (1954); Meachem v. Boyce, 35 N.C. App. 506, 241 S.E.2d 880 (1978); Harris v. Harris, 51 N.C. App. 103, 275 S.E.2d 273 (1981); Duke v. Hill, 68 N.C. App. 261, 314 S.E.2d 586 (1984).

Cited in Wachovia Bank & Trust Co. v. United States, 234 F. Supp. 897 (M.D.N.C. 1964); Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976); Bridgers v. Bridgers, 56 N.C. App. 617, 289 S.E.2d 921 (1982); Bomer v. Campbell, 70 N.C. App. 137, 318 S.E.2d 841 (1984).

§ 46-22.1: Recodified as G.S. 46A-29 by Session Laws 2020-23, s. 2(z), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

CASE NOTES

Rule Before Section Was Adopted. - Before the passage of this section, cotenants in remainder or reversion had no right to enforce a compulsory partition of land in which they had such estate. Gillespie v. Allison, 115 N.C. 542, 20 S.E. 627 (1894); Moore v. Baker, 222 N.C. 736, 24 S.E.2d 749 (1943).

Prior to passage of this section, partition was permitted between the holder of the life estate and the owner in fee. McEachern v. Gilchrist, 75 N.C. 196 (1876).

Rule under this Section. - The existence of a life estate is not, per se, a bar to a sale for partition of the remainder or reversion thereof, since, for the purpose of partition, tenants in common are deemed seized and possessed as if no life estate existed. The actual possession of the life tenant, however, cannot be disturbed so long as it exists. Kayann Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966).

Section Not Applicable to Life Estate with Power of Sale. - When lands are devised to wife for life, giving her control thereof with power to sell, pay debts, etc., this section does not apply, for if applied it would defeat the very purpose as to powers given the wife. Makely v. Makely, 175 N.C. 121, 95 S.E. 51 (1918).

A power of sale granted to a life tenant by implication creates an exception to the right of partition set out in this section. Keener v. Korn, 46 N.C. App. 214, 264 S.E.2d 829 (1980).

This Section Enlarges Vested Rights. - A statute giving to remaindermen the right to have partition of lands in remainder vested before the passage of such statute is remedial and, instead of impairing, enlarges vested rights. Gillespie v. Allison, 115 N.C. 542, 20 S.E. 627 (1894).

Application Is Not Limited to Sales. - By the wording of this section, that is, "a sale for partition," followed by the words "purposes of partition," it is apparent that the legislature did not intend to limit the application of the section to sales, and it is to be construed to include actual partition by the remaindermen, as well as for a sale for division by them. Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86 (1912).

The existence of a life estate, even though it be in favor of one of the tenants in common, does not preclude partition of the remainder among the tenants in common. Smith v. Smith, 248 N.C. 194, 102 S.E.2d 868 (1958).

Vested Remaindermen Are Entitled to Partition or Sale. - Since the enactment of this section, the owner of a fee or vested remainder in real estate as a joint tenant or tenant in common is entitled to a partition of the land or sale for partition of the remainder or reversion thereof. But such partition or sale of a vested remainder in real estate shall not interfere with the possession of the life tenant during the existence of his estate. Bunting v. Cobb, 234 N.C. 132, 66 S.E.2d 661 (1951).

Remainderman petitioner was entitled to partition as a matter of right, unless actual partition could not be made without injury to some or all of the parties interested. In that case, he would be entitled to sale or partition. Richardson v. Barnes, 238 N.C. 398, 77 S.E.2d 925 (1953).

Proceedings for partition cannot be maintained when plaintiff holds only a contingent interest in the lands, determinable on the death of the life tenant, who is still living at the time. Vinson v. Wise, 159 N.C. 653, 75 S.E. 732 (1912).

Possession Need Not Be Actual. - A tenant in common is entitled to a compulsory partition, and to enable said tenant to maintain a proceeding for such partition he must have an estate in possession, or the right of possession. The possession need not be actual. The actual possession may be in a life tenant. Moore v. Baker, 222 N.C. 736, 24 S.E.2d 749 (1943). See also, Priddy & Co. v. Sanderford, 221 N.C. 422, 20 S.E.2d 341 (1942).

All Parties Interested Must Unite. - A sale for partition will not be decreed when there are contingent remainders or other conditional interests therein unless all the persons who may be by any possibility interested unite in asking such a decree. Aydlett v. Pendleton, 111 N.C. 28, 16 S.E. 8 (1892); Pendleton v. Williams, 175 N.C. 248, 95 S.E. 500 (1918).

If contingent interests are to be affected by the partition, they must be represented. Overman v. Tate, 114 N.C. 571, 19 S.E. 706 (1894).

Applied in Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365 (1941); Davis v. Griffin, 249 N.C. 26, 105 S.E.2d 119 (1958); Miller v. McLean, 252 N.C. 171, 113 S.E.2d 359 (1960); Horne v. Horne, 261 N.C. 688, 136 S.E.2d 87 (1964).

§ 46-24: Recodified as G.S. 46A-78 by Session Laws 2020-23, s. 2(bb), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-25: Recodified as G.S. 46A-80 by Session Laws 2020-23, s. 2(cc), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-26: Recodified as G.S. 46A-81 by Session Laws 2020-23, s. 2(dd), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-27: Recodified as G.S. 46A-82 by Session Laws 2020-23, s. 2(ee), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-28: Subsections (a) and (b) were recodified as G.S. 46A-76(a), (d), and subsection (c) was recodified as G.S. 46A-77, by Session Laws 2020-23, s. 2(ff), (gg), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-28.1: Subsections (a), (b), (c), (d), and (e) were recodified as G.S. 46A-83(a), (c), (d), (e), and (f), subsection (d1) was recodified as G.S. 46A-84, and subsection (f) was recodified as G.S. 46A-85(a), by Session Laws 2020-23, s. 2(hh), (ii), (jj), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-28.2: Recodified as G.S. 46A-85(b) by Session Laws 2020-23, s. 2(kk), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-29: Repealed by Session Laws 1949, c. 719, s. 2.

§ 46-30: Recodified as G.S. 46A-85(c) by Session Laws 2020-23, s. 2( ll ), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-31: Recodified as G.S. 46A-76(c) by Session Laws 2020-23, s. 2(mm), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-32: Repealed by Session Laws 1949, c. 719, s. 2.

§ 46-33: Recodified as G.S. 46A-85(d) by Session Laws 2020-23, s. 2(nn), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46-34: Recodified as G.S. 46A-86 by Session Laws 2020-23, s. 2(oo), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.