Article 1. General Provisions.

§ 46A-1. Partition is a special proceeding.

A partition of property under this Chapter is by special proceeding and, except as modified in this Chapter, its procedure is provided in Subchapter XII of Chapter 1 of the General Statutes.

History. 1868-9, c. 122, s. 33; Code, s. 1923; Rev., s. 2485; C.S., s. 3213; 2020-23, ss. 2(a), 3.

Cross References.

As to special proceedings generally, see G.S. 1-393 et seq.

Editor’s Note.

Session Laws 2020-23, s. 18, made this Chapter effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

This section is former G.S. 46-1 , as recodified by Session Laws 2020-23, s. 2(a), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “Time Sharing: The North Carolina General Assembly’s Response to Ownership of Time Share Contracts,” see 15 N.C. Cent. L.J. 56 (1984).

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-1 or prior law.

Partition Regulated by Statute. —

Since 1868, the partition of land between tenants in common has been regulated by statute. Allen v. Allen, 258 N.C. 305 , 128 S.E.2d 385, 1962 N.C. LEXIS 673 (1962).

Proceedings Are Equitable in Nature. —

Partition proceedings have been consistently held to be equitable in nature. Allen v. Allen, 263 N.C. 496 , 139 S.E.2d 585, 1965 N.C. LEXIS 1314 (1965); Kayann Properties, Inc. v. Cox, 268 N.C. 14 , 149 S.E.2d 553, 1966 N.C. LEXIS 1123 (1966).

In this State partition proceedings have been consistently held to be equitable in nature, and the statutes are not a strict limitation upon the authority of the court. Dunn v. Dunn, 37 N.C. App. 159, 245 S.E.2d 580, 1978 N.C. App. LEXIS 2674 (1978); Gray v. Crotts, 58 N.C. App. 365, 293 S.E.2d 626, 1982 N.C. App. LEXIS 2768 (1982).

Procedure Prescribed for Special Proceedings Applies. —

A proceeding for partition of real or personal property is a special proceeding under procedure in all respects the same as that prescribed by law in special proceedings except as modified by this chapter. Dubose v. Harpe, 239 N.C. 672 , 80 S.E.2d 454, 1954 N.C. LEXIS 604 (1954).

Jurisdiction. —

Where the parties invoked the jurisdiction of the district court to equitably distribute their marital property in an action for absolute divorce and equitable distribution of their marital property, the district court did not lose jurisdiction to equitably distribute the marital property because of its failure to enter a judgment in the equitable distribution case before the special proceeding seeking partition of the marital property was filed in the office of the clerk of superior court. Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628, 1988 N.C. App. LEXIS 583 (1988).

Taking Rendered Partition Suit Moot. —

Taking which was proper under this section rendered earlier suit for partition of property moot; State did not have to wait until partition proceedings had been completed to condemn petitioner’s interest. Coastland Corp. v. North Carolina Wildlife Resources Comm'n, 134 N.C. App. 343, 517 S.E.2d 661, 1999 N.C. App. LEXIS 748 (1999).

Sovereign immunity does not bar a suit for partition against the State, in its initial stage where petitioner merely seeks, through a “special proceeding,” to have what already belongs to him and makes no demands on the State’s property or ownership. Coastland Corp. v. North Carolina Wildlife Resources Comm'n, 134 N.C. App. 343, 517 S.E.2d 661, 1999 N.C. App. LEXIS 748 (1999).

A tenancy in common is the foundation upon which partition is based. Smith v. Smith, 248 N.C. 194 , 102 S.E.2d 868, 1958 N.C. LEXIS 372 (1958).

Under this Chapter, a tenant in common is entitled to partition as a matter of right. McDowell v. McDowell, 61 N.C. App. 700, 301 S.E.2d 729, 1983 N.C. App. LEXIS 2740 (1983).

This right may be waived, however, for a reasonable time, by either an express or implied contract. McDowell v. McDowell, 61 N.C. App. 700, 301 S.E.2d 729, 1983 N.C. App. LEXIS 2740 (1983).

A cotenants’ right to partition can be contracted away in a deed of separation entered into while the property is still owned by the parties as tenants by the entirety. McDowell v. McDowell, 61 N.C. App. 700, 301 S.E.2d 729, 1983 N.C. App. LEXIS 2740 (1983).

To estop a cotenant from partitioning a piece of property, there must be an express or implied contract or agreement waiving the right to partition. Roberson v. Roberson, 65 N.C. App. 404, 309 S.E.2d 520, 1983 N.C. App. LEXIS 3476 (1983).

Chapter Does Not Apply to Partition by Agreement. —

This Chapter applies to compulsory or judicial partition. It does not apply to partition by agreement. Keener v. Den, 73 N.C. 132 , 1875 N.C. LEXIS 32 (1875).

As to authority of court in partition by agreement, and procedure therein, see Outlaw v. Outlaw, 184 N.C. 255 , 114 S.E. 4, 1922 N.C. LEXIS 66 (1922). See also, Newsome v. Harrell, 168 N.C. 295 , 84 S.E. 337, 1915 N.C. LEXIS 38 (1915).

Superior court had no authority to partition marital property pursuant to the provisions of this section where the jurisdiction of the district court had been properly invoked to equitably distribute such marital property. Garrison v. Garrison, 90 N.C. App. 670, 369 S.E.2d 628, 1988 N.C. App. LEXIS 583 (1988).

Dismissal of Appeal Held Error. —

Where petitioners excepted to the commissioners’ report under G.S. 46-19 , 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 N.C. App. LEXIS 369 (1990).

Partition Not Proper Remedy for Ouster. —

Where a tenant in common has been actually ousted by his cotenant, his remedy is by ejectment, and not partition. Thomas v. Garvan, 15 N.C. 223 , 1833 N.C. LEXIS 68 (1833).

§ 46A-2. Summons; notice included in petition.

  1. In partition proceedings initiated under this Chapter, the period of time for answering a summons is provided in G.S. 1-394 .
  2. The petition shall include written notice in a manner reasonably calculated to make the respondent aware of the following:
    1. That the respondent has the right to seek the advice of an attorney and that free legal services may be available to the respondent by contacting Legal Aid of North Carolina or other legal services organizations.
    2. That pursuant to G.S. 46A-3 , the court may order reasonable attorneys’ fees to be paid as a part of the costs of the proceeding.

History. 2009-362, s. 3; 2020-23, ss. 2(c), 3.

Editor’s Note.

This section is former G.S. 46-2.1 , as recodified by Session Laws 2020-23, s. 2(c), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of the section heading and of subsection (b) by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section heading and subsection (b). For effective date and applicability, see editor’s note.

§ 46A-3. Attorneys’ fees.

  1. In proceedings to partition property under this Chapter, the court shall allocate among all the cotenants of the property those reasonable attorneys’ fees incurred by any cotenant for the common benefit of all the cotenants, unless a cotenant shows that doing so would be inequitable. The allocation shall be according to each cotenant’s interest in the property.
  2. The attorneys’ fees described in subsection (a) of this section do not include attorneys’ fees incurred in disputing the method of partition or the division of the proceeds of a partition sale. Reasonable attorneys’ fees incurred by a cotenant in disputing an issue described in this subsection shall be allocated by the court among those cotenants determined by the court to be aligned with the cotenant on that issue. The allocation shall be according to each aligned cotenant’s interest in the property relative to the total interest of all the aligned cotenants in the property.
  3. The court has discretion to allocate among the parties reasonable attorneys’ fees that are not described in subsection (a) or (b) of this section.

History. 2020-23, s. 3.

Editor’s Note.

Session Laws 2020-23, s. 18, made this section, as added by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§§ 46A-4 through 46A-19.

Reserved for future codification purposes.

Article 2. Partition of Real Property.

Part 1. General Provisions.

§ 46A-20. Venue in partition.

A proceeding to partition real property shall be commenced in the county where the property is located. If the property, whether consisting of one or more tracts, is located in more than one county, the proceeding may be commenced in any of the counties where any part of the property is located; in this case, the petitioner shall file a notice of lis pendens in each of the other counties.

History. 1868-9, c. 122, s. 7; Code, s. 1898; Rev., s. 2486; C.S., s. 3214; Ex. Sess. 1924, c. 62, s. 1; 2020-23, ss. 2(b), 3.

Editor’s Note.

This section is former G.S. 46-2 , as recodified by Session Laws 2020-23, s. 2(b), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

The case note below was decided under former G.S. 46-2 .

Waiver of Venue. —

Construing G.S. 1-82 and G.S. 1-83 and this section in pari materia, venue cannot be jurisdictional, and it may always be waived. Pleading to the merits waives defective venue. Venue is a matter not to be determined by the common law, but by legislative regulation. Clark v. Carolina Homes, Inc., 189 N.C. 703 , 128 S.E. 20, 1925 N.C. LEXIS 385 (1925).

§ 46A-21. Petition by cotenant or personal representative of cotenant; necessary and proper parties; joinder of spouses.

  1. Any person claiming real property as a tenant in common or joint tenant may petition to partition the property in superior court. The personal representative of a deceased tenant in common or deceased joint tenant may also petition to partition the property as part of a petition to sell the deceased cotenant’s interest for the payment of debts and other claims against the deceased cotenant’s estate as provided in G.S. 28A-17-3 .
  2. The petitioner shall serve and join all tenants in common and joint tenants of the property. The petitioner may serve and join any other person with an interest in the property, any lessee of the property, and any holder of a lien, mortgage, or deed of trust on the property.
  3. The petitioner is not required to serve or join spouses of cotenants of the real property unless the spouse is also a cotenant.

History. 1868-9, c. 122, s. 1; Code, s. 1892; Rev., s. 2487; C.S., s. 3215; 1963, c. 291, s. 2; 1985, c. 689, s. 16; 2020-23, ss. 2(d), 3.

Cross References.

As to procedure for sale or mortgage of property where there is a vested interest and a contingent remainder to uncertain persons, see G.S. 41-11 .

As to unknown parties, see G.S. 46-6 .

As to partition sales, see G.S. 46-22 et seq.

Editor’s Note.

This section is former G.S. 46-3 , as recodified by Session Laws 2020-23, s. 2(d), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Analysis

I.In General

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-3 or prior law.

Jurisdiction of Superior Court. —

The superior court acquires jurisdiction over proceedings to partition lands upon their being transferred by the clerk thereto, in terms, and may proceed therewith and fully determine all matters in controversy. In such case it is immaterial whether it was properly instituted before the clerk. Baggett v. Jackson, 160 N.C. 26 , 76 S.E. 86, 1912 N.C. LEXIS 118 (1912).

Where petitioner tried but failed to invoke the jurisdiction of the district court for equitable distribution of the parties’ marital property the superior court had subject matter jurisdiction to hear the proceeding for the partition of the subject property. Diggs v. Diggs, 116 N.C. App. 95, 446 S.E.2d 873, 1994 N.C. App. LEXIS 860 (1994).

Tenancy in Common Is Necessary Basis for Partition. —

Tenancy in common in land is the necessary basis for maintenance of a special proceeding for partition by petition to the superior court. Murphy v. Smith, 235 N.C. 455 , 70 S.E.2d 697, 1952 N.C. LEXIS 447 (1952); Gray v. Crotts, 58 N.C. App. 365, 293 S.E.2d 626, 1982 N.C. App. LEXIS 2768 (1982).

A tenancy in common is the foundation upon which partition is based. Smith v. Smith, 248 N.C. 194 , 102 S.E.2d 868, 1958 N.C. LEXIS 372 (1958); Hi-Fort, Inc. v. Burnette, 42 N.C. App. 428, 257 S.E.2d 85, 1979 N.C. App. LEXIS 2765 (1979).

Tenant in Common Is Entitled to Partition as Matter of Right. —

A tenant in common is entitled as a matter of right to partition of real estate held in common, to the end that he may have and enjoy his share therein in severalty. Davis v. Griffin, 249 N.C. 26 , 105 S.E.2d 119, 1958 N.C. LEXIS 408 (1958); Brown v. Boger, 263 N.C. 248 , 139 S.E.2d 577, 1965 N.C. LEXIS 1275 (1965).

Ordinarily a tenant in common in realty or personalty is entitled to partition of the property. Chadwick v. Blades, 210 N.C. 609 , 188 S.E. 198, 1936 N.C. LEXIS 174 (1936).

Tenant Must Have Right of Possession. —

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. Moore v. Baker, 222 N.C. 736 , 24 S.E.2d 749, 1943 N.C. LEXIS 416 (1943). See Wood v. Sugg, 91 N.C. 93 , 1884 N.C. LEXIS 2 4 (1884); Osborne v. Mull, 91 N.C. 203 , 1884 N.C. LEXIS 47 (1884); Alexander v. Gibbon, 118 N.C. 796 , 24 S.E. 748, 1896 N.C. LEXIS 137 (1896); Spring Green Church v. Thornton, 158 N.C. 119 , 73 S.E. 810, 1912 N.C. LEXIS 2 (1912).

Waiver of Right to Partition. —

While it is the general rule that a tenant in common may have partition as a matter of right, it is equally well established that a cotenant, either by an express or implied contract, may waive his right to partition for a reasonable time. When he does, partition will be denied him or his successors who take with notice. Kayann Properties, Inc. v. Cox, 268 N.C. 14 , 149 S.E.2d 553, 1966 N.C. LEXIS 1123 (1966).

A person can validly contract away his right to partition in a deed of separation. Hepler v. Burnham, 24 N.C. App. 362, 210 S.E.2d 509, 1975 N.C. App. LEXIS 2489 (1975).

Tenants in common may make a valid agreement whereby the right to partition is modified or limited, provided the waiver of the right to partition is not for an unreasonable length of time. Chadwick v. Blades, 210 N.C. 609 , 188 S.E. 198, 1936 N.C. LEXIS 174 (1936). See 15 N.C.L. Rev. 279 (1937).

Statutes declaring that joint tenants or tenants in common shall have a right to partition were never intended to interfere with a contract between such tenants modifying or limiting this otherwise incidental right, or to render it incompetent for parties to make such contracts, either at the time of the creation of the tenancy or afterwards. Hepler v. Burnham, 24 N.C. App. 362, 210 S.E.2d 509, 1975 N.C. App. LEXIS 2489 (1975).

In this State partition proceedings have been consistently held to be equitable in nature, and the court has jurisdiction to adjust all equities in respect to the property. Kayann Properties, Inc. v. Cox, 268 N.C. 14 , 149 S.E.2d 553, 1966 N.C. LEXIS 1123 (1966).

Petitioner Must Do Equity. —

Partition is always subject to the principle that he who seeks it by coming into equity for relief must do equity. Kayann Properties, Inc. v. Cox, 268 N.C. 14 , 149 S.E.2d 553, 1966 N.C. LEXIS 1123 (1966); Gray v. Crotts, 58 N.C. App. 365, 293 S.E.2d 626, 1982 N.C. App. LEXIS 2768 (1982).

Equity will not award partition at the suit of one in violation of his own agreement or in violation of a condition or restriction imposed on the estate by one through whom he claims. The objection to partition in such cases is in the nature of an estoppel. Kayann Properties, Inc. v. Cox, 268 N.C. 14 , 149 S.E.2d 553, 1966 N.C. LEXIS 1123 (1966).

The refusal of partition to one who has brought suit therefor in violation of his contract appears to bear a close analogy to the grant of specific performance of a contract. Kayann Properties, Inc. v. Cox, 268 N.C. 14 , 149 S.E.2d 553, 1966 N.C. LEXIS 1123 (1966).

What Petition Should Allege. —

A petition under this section is in the ordinary form of a complaint in a civil action, and should allege that the plaintiffs and defendants are tenants in common of the land, should describe the land; should state the interest of each party; and should indicate that the plaintiffs desire to hold their interests in severalty and that they are entitled to partition for that purpose. Pearson v. McKenney, 5 N.C. App. 544, 169 S.E.2d 46, 1969 N.C. App. LEXIS 1393 (1969).

Failure to Allege Right to Possession. —

If the petition alleges that the petitioners are tenants in common in fee, it will not be dismissed for failure to allege that they are entitled to immediate possession. Epley v. Epley, 111 N.C. 505 , 16 S.E. 321, 1892 N.C. LEXIS 210 (1892); Alexander v. Gibbon, 118 N.C. 796 , 24 S.E. 748, 1896 N.C. LEXIS 137 (1896).

Where tenants in common allege that they are the owners of land and seized of the fee simple title thereto, the law presumes possession. Moore v. Baker, 222 N.C. 736 , 24 S.E.2d 749, 1943 N.C. LEXIS 416 (1943).

Omission of Term of Court. —

A petition in special proceedings for partition was not demurrable because it did not give the term of court or any court in the caption. Hartsfield v. Bryan, 177 N.C. 166 , 98 S.E. 379, 1919 N.C. LEXIS 94 (1919).

Leave to Amend Petition. —

On petition before the clerk for partition, permission to amend the petition is purely within the discretion of the clerk. Simmons v. Jones, 118 N.C. 472 , 24 S.E. 114, 1896 N.C. LEXIS 80 (1896).

As to nonsuit (now dismissal) of proceedings, see Haddock v. Stocks, 167 N.C. 70 , 83 S.E. 9, 1914 N.C. LEXIS 56 (1914); Kayann Properties, Inc. v. Cox, 268 N.C. 14 , 149 S.E.2d 553, 1966 N.C. LEXIS 1123 (1966).

Partition in Kind Is Favored. —

Partition in kind is favored and will be ordered, even though there may be some slight disadvantages in pursuing such method. Brown v. Boger, 263 N.C. 248 , 139 S.E.2d 577, 1965 N.C. LEXIS 1275 (1965).

Right of Actual Partition May Not Be Used to Injure Another. —

Partition of land in kind is a matter of right, but this right of actual partition may not be so used as to injure another. Brown v. Boger, 263 N.C. 248 , 139 S.E.2d 577, 1965 N.C. LEXIS 1275 (1965).

Prima facie, a tenant in common is entitled, as a matter of right, to a 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 N.C. LEXIS 1123 (1966).

There should be a partition in kind unless such partition will cause material and substantial injury to some or all of the parties interested. Brown v. Boger, 263 N.C. 248 , 139 S.E.2d 577, 1965 N.C. LEXIS 1275 (1965).

Determination of Whether Land Should Be Partitioned or Sold. —

Whether or not, in a proceeding instituted under this section for partition of land held by two or more persons as tenants in common, there shall be an actual partition or a sale for partition, as authorized by statute, involves a question of fact to be determined by the court. Talley v. Murchison, 212 N.C. 205 , 193 S.E. 148, 1937 N.C. LEXIS 268 (1937).

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 N.C. LEXIS 1275 (1965).

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 N.C. LEXIS 1275 (1965).

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 N.C. LEXIS 1275 (1965).

The physical difficulty of division is only a circumstance for the consideration of the court. Brown v. Boger, 263 N.C. 248 , 139 S.E.2d 577, 1965 N.C. LEXIS 1275 (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 N.C. LEXIS 1123 (1966).

Ownership of Adjacent Land by Tenant in Common. —

While it is true that courts may consider whether one of the tenants in common owns other land adjoining the land to be partitioned, that does not, ipso facto, mean that a tenant in common’s share of the property being partitioned must be laid off next to his homeplace. Gray v. Crotts, 58 N.C. App. 365, 293 S.E.2d 626, 1982 N.C. App. LEXIS 2768 (1982).

Drawing of Lots to Assign Shares. —

When there is no question that parcels have been equally divided in terms of value, the drawing of lots as a method of assigning the shares to tenants in common is specifically approved, even though this article makes no provision for partitioning by lot or chance. Gray v. Crotts, 58 N.C. App. 365, 293 S.E.2d 626, 1982 N.C. App. LEXIS 2768 (1982).

Partition of Part of Land. —

The petitioners are not entitled as a matter of right to have a part only of the lands divided, and the defendants may have other land held in common included. Luther v. Luther, 157 N.C. 499 , 73 S.E. 102 (1911); Horne v. Horne, 261 N.C. 688 , 136 S.E.2d 87 (1964); Coats v. Williams, 261 N.C. 692 , 136 S.E.2d 113 (1964). But see G.S. 46-16 and the notes thereto as to partial partition .

Effect of Adjudication When Title Is Put in Issue. —

While proceedings for the partition of lands do not ordinarily place the title at issue, such may be done by the tenants in common, and the judgment thereunder will estop them. Buchanan v. Harrington, 152 N.C. 333 , 67 S.E. 747 (1910); Baugham v. Trust Co., 181 N.C. 406 , 107 S.E. 431, 1921 N.C. LEXIS 89 (1921).

II.Parties

The life tenant of a one-half interest in realty may maintain a partition proceeding against the fee simple owner of the other one-half interest in the property. First-Citizens Bank & Trust Co. v. Carr, 279 N.C. 539 , 184 S.E.2d 268, 1971 N.C. LEXIS 886 (1971).

Sale or Partition of Reversions, Remainders and Executory Interests. —

This section is no authority for partition as between the life tenant and remaindermen, except where the proceeding is brought by the remaindermen and the life tenant is joined. Burton v. Cahill, 192 N.C. 505 , 135 S.E. 332, 1926 N.C. LEXIS 335 (1926).

Prior to the enactment of G.S. 46-23 , cotenants in remainder or reversion had no right to enforce a compulsory partition of land in which they had such estate. Moore v. Baker, 222 N.C. 736 , 24 S.E.2d 749, 1943 N.C. LEXIS 416 (1943).

Right as Against Persons Having Contingent Remainders in Undivided Interests in Land. —

Petitioners, owning an undivided interest in fee in several tracts of land and also owning life estates in the balance of the undivided interests in the same tracts of land with contingent limitations over to persons not presently determinable, had the right, as against the contingent remaindermen, to partition the several tracts so that petitioners might hold some of the tracts in fee and in common, and thus know the boundaries of the real estate owned by them in fee distinct from the boundaries of that in which they owned life estates with contingent remainder over. Davis v. Griffin, 249 N.C. 26 , 105 S.E.2d 119, 1958 N.C. LEXIS 408 (1958).

Right of Divorced Couple to Partition. —

When marriage is dissolved by divorce, the husband and wife become tenants in common of property formerly held by the entirety, and are entitled to partition. McKinnon, Currie & Co. v. Caulk, 167 N.C. 411 , 83 S.E. 559, 1914 N.C. LEXIS 137 (1914).

Churches belonging to an association controlling a school are not entitled to partition. Spring Green Church v. Thornton, 158 N.C. 119 , 73 S.E. 810, 1912 N.C. LEXIS 2 (1912).

Partition by Minor and Another. —

Where partition was brought by a minor and another, the latter was bound by the judgment, although it was not approved by the judge of the court. Lindsay v. Beaman, 128 N.C. 189 , 38 S.E. 811, 1901 N.C. LEXIS 365 (1901).

Persons Bound by Proceedings. —

Persons who are not parties are not bound. Henderson v. Wallace, 72 N.C. 451 , 1875 N.C. LEXIS 257 (1875).

Bringing in Defendants. —

Parties claiming to hold in common may be brought in as defendants. McKeel v. Holloman, 163 N.C. 132 , 79 S.E. 445, 1913 N.C. LEXIS 134 (1913).

In an action by heirs at law for partition of intestate’s lands, the administrator could not be made a party defendant because he opposed the partition and wished in the same action to make application to sell the land for debts of the estate. Garrison v. Cox, 99 N.C. 478 , 6 S.E. 124, 1888 N.C. LEXIS 321 (1888).

Additional Party Seeking to Set Aside Sale. —

An application to be made a party defendant in partition proceedings after confirmation of sale was properly denied, where it was based on deeds from persons who never had claimed any title and was accompanied by a motion to set aside the sale to permit principals to make a bid. Thompson v. Rospigliosi, 162 N.C. 145 , 77 S.E. 113, 1913 N.C. LEXIS 327 (1913).

Persons named as parties must be served with process. Patillo v. Lytle, 158 N.C. 92 , 73 S.E. 200, 1911 N.C. LEXIS 343 (1911).

Intervention by Claimant of Paramount Title. —

In an action for partition of lands, it is proper to allow another party claiming paramount title to the land to intervene and assert his rights. Roughton v. Duncan, 178 N.C. 5 , 100 S.E. 78, 1919 N.C. LEXIS 374 (1919).

Claimant of paramount title who seeks to intervene in partition proceedings may be estopped by his laches. Thomas v. Garvan, 15 N.C. 223 , 1833 N.C. LEXIS 68 (1833).

As to intervention by a judgment debtor, see Edmonds v. Wood, 222 N.C. 118 , 22 S.E.2d 237, 1942 N.C. LEXIS 42 (1942).

Judgment Creditors and Mortgagees. —

In proceedings for partition, judgment creditors of the individual tenants, and their mortgagees, are proper parties to the proceedings; and where such lienors have been made parties thereto, it is error for the trial judge to dismiss the action as to them. Holley v. White, 172 N.C. 77 , 89 S.E. 1061, 1916 N.C. LEXIS 233 (1916).

The mortgagee of one tenant in common is not a necessary party to special proceedings to partition the land. Rostan v. Huggins, 216 N.C. 386 , 5 S.E.2d 162, 1939 N.C. LEXIS 174 (1939).

The presence of an unnecessary party, in proceedings for partition of lands, will be regarded as immaterial, except as affecting costs. Baggett v. Jackson, 160 N.C. 26 , 76 S.E. 86, 1912 N.C. LEXIS 118 (1912).

III.Plea of Sole Seizin

Effect of Plea. —

Where the plea of sole seizin is set up, the effect is practically to convert the procedure into an action of ejectment. When it is not set up, the parties are taken to be tenants in common, and the only inquiry is as to the interests owned. Graves v. Barrett, 126 N.C. 267 , 35 S.E. 539, 1900 N.C. LEXIS 229 (1900); Haddock v. Stocks, 167 N.C. 70 , 83 S.E. 9, 1914 N.C. LEXIS 56 (1914).

Where the plea of sole seizin is set up, the proper course is for the court to try title to the land. Purvis v. Wilson, 50 N.C. 22 , 1857 N.C. LEXIS 8 (1857).

Waiver of Plea. —

Where, in partition, a plea of sole seizin is not put in before the order of partition is made, it will be considered as waived. Wright v. McCormick, 69 N.C. 14 , 1873 N.C. LEXIS 155 (1873).

Burden of Proof. —

Where the defendants plead sole seizin in proceedings to partition lands, the burden of proof was with the plaintiff, which would devolve upon the defendant to establish adverse possession, when relied upon for title, after a prima facie case of tenancy in common was made out. Lester v. Harvard, 173 N.C. 83 , 91 S.E. 698, 1917 N.C. LEXIS 244 (1917).

Where defendants in partition deny cotenancy and plead sole seizin, the burden is upon plaintiffs to show title in the parties by tenancy in common. Johnson v. Johnson, 229 N.C. 541 , 50 S.E.2d 569, 1948 N.C. LEXIS 370 (1948).

§ 46A-22. Unknown or unlocatable parties; summons, notice, and representation.

  1. If, at the time of or subsequent to the filing of the petition, the petitioner shows by affidavit or otherwise that the petitioner cannot after due diligence ascertain the name or location of a person that the petitioner is required to, or chooses to, serve under G.S. 46A-21(b) , the court shall authorize service by publication under G.S. 1A-1 , Rule 4. The notice by publication shall include a description of the property that includes the street address, if any, or other common designation for the property, if any, and may include the legal description of the property.
  2. Before or after the notice by publication, the court shall appoint a guardian ad litem under G.S. 1A-1 , Rule 17, to represent any unknown or unlocatable person that the petitioner is required to, or chooses to, serve under G.S. 46A-21(b) .

History. 1887, c. 284; Rev., s. 2490; C.S., s. 3218; 2009-512, s. 1; 2020-23, ss. 2(h), 3.

Editor’s Note.

Session Laws 2009-512, s. 1, which inserted “or unlocatable” and “notice,” in the section heading, inserted subsection (a) and (b) designations, added the second sentence in subsection (a), and, in subsection (zb), substituted “Before or” for “If,” deleted “in its discretion” following “the court shall,” and inserted “or unlocatable”, was effective October 1, 2009, and applicable to partition actions filed on or after that date.

This section is former G.S. 46-6 , as recodified by Session Laws 2020-23, s. 2(h), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2009-512, s. 1, effective October 1, 2009, and applicable to partition actions filed on or after that date, inserted “or unlocatable” and “notice,” in the section heading; inserted subsection (a) and (b) designations; added the second sentence in subsection (a); and, in subsection (b), substituted “Before or” for “If,” deleted “in its discretion” following “the court shall,” and inserted “or unlocatable.”

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-6 or prior law.

Discretion in Appointing Representative. —

It is discretionary with the trial judge, by the express terms of the statute, as to whether he will appoint some disinterested person to represent the interest of unknown persons, etc., and this discretion is not reviewable. Lawrence v. Hardy, 151 N.C. 123 , 65 S.E. 766, 1909 N.C. LEXIS 210 (1909).

Purchaser Acquires Good Title. —

When the service of summons has been made by publication on parties unknown, as required by this section, the proceedings being regular upon their face, and the court having jurisdiction of the subject matter, a purchaser for full value without notice acquires title, free from claim or demand of such heir upon whom summons has been thus served. Lawrence v. Hardy, 151 N.C. 123 , 65 S.E. 766, 1909 N.C. LEXIS 210 (1909).

Purchaser Cannot Resist Payment of Purchase Price. —

Where the method prescribed by this section is followed, a purchaser may not successfully resist payment of the purchase price of the land on the ground of a defect in title in that the commissioner’s deed would not preclude the claim of the missing heir. Bynum v. Bynum, 179 N.C. 14 , 101 S.E. 527, 1919 N.C. LEXIS 6 (1919).

§ 46A-23. Petition by judgment creditor of cotenant.

  1. If a judgment debtor has a personal liability on a judgment docketed in the superior court of a county where the judgment debtor owns real property as a tenant in common or joint tenant, the judgment creditor may petition for an actual partition of the property. If the court apportions a share of the property to the judgment debtor, the judgment creditor may seek to execute the judgment against the judgment debtor’s share by (i) setting aside the judgment debtor’s homestead in the share, as determined according to Article X of the North Carolina Constitution and Article 16 of Chapter 1C of the General Statutes, and (ii) selling the remaining part of the share.
  2. The remedy provided in this section does not deprive a judgment creditor of any other remedy in law or equity to enforce a judgment lien.

History. 1905, c. 429; Rev., s. 2489; C.S., s. 3217; 2020-23, ss. 2(g), 3.

Cross References.

As to execution, see G.S. 1-302 et seq.

As to exempt property, see now G.S. 1C-1601 et seq.

Editor’s Note.

This section is former G.S. 46-5 , as recodified by Session Laws 2020-23, s. 2(g), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case note for this section was decided under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

The case note below was decided under former G.S. 46-5 or prior law.

As to intervention in partition proceedings, see Edmonds v. Wood, 222 N.C. 118 , 22 S.E.2d 237, 1942 N.C. LEXIS 42 (1942).

§ 46A-24. Surface and oil, gas, or mineral interests in separate owners; partitions distinct.

When title to the oil, gas, or mineral interests in real property has been separated in ownership from the title to the surface of the property, a tenant in common or joint tenant of the oil, gas, or mineral interests may partition the oil, gas, or mineral interests, distinct from the surface, without joining the owner of the surface. Similarly, a tenant in common or joint tenant of the surface of the property may partition the surface, distinct from the oil, gas, or mineral interests, without joining the owner of the oil, gas, or mineral interests. An owner of the oil, gas, or mineral interests is not required to join a partition of the surface of the property, and an owner of the surface of the property is not required to join a partition of the oil, gas, or mineral interests. The rights of either owner shall not be prejudiced by a partition of the other interests.

History. 1905, c. 90; Rev., s. 2488; C.S., s. 3216; 2020-23, ss. 2(f), 3.

Editor’s Note.

This section is former G.S. 46-4 , as recodified by Session Laws 2020-23, s. 2(f), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

§ 46A-25. Partition of real property subject to a contingent future interest; requirements.

When real property is subject to a contingent future interest, any judgment partitioning the property is valid and binding upon all persons having an interest in the property, whether or not in being, if all of the following requirements are met:

  1. The following persons are parties:
    1. Persons with a present interest or a vested future interest.
    2. Persons in being with a contingent future interest and that would have a present interest if the contingency had occurred at the time the proceeding was commenced.
    3. Persons not in being with a contingent future interest.
  2. The following parties are represented by a guardian ad litem appointed under G.S. 1A-1 , Rule 17:
    1. Unborn individuals.
    2. Parties not in being.
    3. Parties who are minors or incompetent adults and who do not have a guardian of the estate or general guardian.
    4. Unknown or unlocatable parties.

History. 1933, c. 215, s. 1; 1959, c. 1274, s. 1; 2020-23, ss. 2(q), 3.

Editor’s Note.

This section is former G.S. 46-14 , as recodified by Session Laws 2020-23, s. 2(q), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

§ 46A-26. Methods of partition.

In a partition proceeding under this Article, the court shall order one of the following methods of partitioning the real property:

  1. Actual partition under Part 2 of this Article.
  2. Partition sale under Part 3 of this Article so long as the requirements of that Part are satisfied.
  3. Actual partition of part of the property and a partition sale of the remaining part.
  4. Partition of part of the property, whether by actual partition or by partition sale, and order that the remaining part continue to be held in cotenancy. The court, however, shall not order a cotenant to continue to hold property in cotenancy over the cotenant’s objection.

History. 1887, c. 214, s. 1; Rev., s. 2506; C.S., s. 3227; 2020-23, ss. 2(r), 3.

Editor’s Note.

This section is former G.S. 46-16 , as recodified by Session Laws 2020-23, s. 2(r), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-16 or prior law.

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 N.C. LEXIS 288 (1886); Patillo v. Lytle, 158 N.C. 92 , 73 S.E. 200, 1911 N.C. LEXIS 343 (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 N.C. LEXIS 573 (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 N.C. App. LEXIS 195 (2019).

§ 46A-27. Carrying costs, including property taxes; improvements; right to contribution.

  1. Right to Contribution. —  A cotenant has a right to contribution from the other cotenants for the cotenant’s payment of the real property’s carrying costs and for the lesser of the following:
    1. The value added to the real property by the cotenant’s improvements as of the date of the commencement of the proceeding.
    2. The actual costs of the cotenant’s improvements.
  2. Procedure. —  In the case of an actual partition, a cotenant may on application assert the cotenant’s right to contribution at any time before the commissioners file their report. In the case of a partition sale, a cotenant may on application assert the right at any time during the partition proceeding.
  3. Property Taxes. —  A cotenant’s right to contribution for property taxes under this section is limited to the amount of property taxes paid by the cotenant during the 10 years preceding the filing of the partition petition, plus interest at the legal rate under G.S. 24-1 .
  4. Scope. —  Nothing in this section affects the rights of cotenants outside a real property partition proceeding initiated under this Chapter.
  5. Carrying Costs Defined. —  For purposes of this section, “carrying costs” means the actual costs of preserving the value of and the cotenants’ interests in the real property, including property taxes, homeowner’s insurance, repairs, and payments for a loan to acquire the real property.

History. 2020-23, s. 3.

Editor’s Note.

Session Laws 2020-23, s. 18, made this section, as added by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46A-28. Court’s authority to make orders before final determination of proceeding; notice and hearing.

  1. Before final determination of a proceeding to partition real property, on application of any of the parties, the court may make any orders that it finds to be in the best interest of the parties, including, but not limited to, orders relating to possession, payment of secured debt or other liens on the property, occupancy and payment of rents, the appointment of a receiver pursuant to G.S. 1-502(6) or a limited receiver for the real property pursuant to Article 38A of Chapter 1 of the General Statutes, and access to the property for the purpose of inspecting, surveying, appraising, or selling the property.
  2. A party making a written application under subsection (a) of this section shall serve a copy of the application on all other parties and any other person the court may require. The court shall schedule a hearing on the application, if, within 10 days of being served, a person files a response in opposition to the application or requests a hearing. If no person files a response or requests a hearing within 10 days of being served, the court may decide the application without a hearing.

History. 1981, c. 584, s. 1; 2020-23, ss. 2(e), 3; 2020-75, s. 3(e); 2021-93, s. 8.

Editor’s Note.

This section is former G.S. 46-3.1 , as recodified by Session Laws 2020-23, s. 2(e), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Session Laws 2020-75, s. 4, made the amendment of subsection (a) of this section by Session Laws 2020-75, s. 3(e), effective January 1, 2021, and applicable to receiverships commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Session Laws 2020-75, s. 3(e), substituted “a limited receiver for the real property pursuant to Article 38A of Chapter 1 of the General Statutes” for “receivers pursuant to G.S. 1-502(6) ” in subsection (a). For effective date and applicability, see editor’s note.

Session Laws 2021-93, s. 8, effective July 22, 2021, inserted “a receiver pursuant to G.S. 1-502(6) or” in subsection (a).

§ 46A-29. Mediation.

  1. Parties interested in the real property may agree at any time during the proceeding to mediation of a partition. G.S. 7A-38.1 and G.S. 7A-38.3 B apply to a mediation under this section.
  2. When a partition sale is requested, the court, on its own motion or a motion of a party, may order mediation before considering whether to order a sale.

History. 2009-512, s. 3; 2020-23, ss. 2(z), 3.

Editor’s Note.

This section is former G.S. 46-22.1 , as recodified by Session Laws 2020-23, s. 2(z), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case note below was decided under the former section.

Session Laws 2009-512, s. 6, made this section effective October 1, 2009, and applicable to actions filed on or after that date.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

The case note below was decided under former G.S. 46-22.1 or prior law.

Relationship to Bankruptcy Law. —

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, 2018 Bankr. LEXIS 2063 (Bankr. E.D.N.C. 2018).

§§ 46A-30 through 46A-49.

Reserved for future codification purposes.

Part 2. Actual Partition.

§ 46A-50. Commissioners appointed; compensation; oath; delay or neglect.

  1. Appointment. —  The superior court shall appoint three disinterested commissioners to apportion the real property to be partitioned among the cotenants. If the property to be partitioned is located in more than one county, the court may appoint additional commissioners if necessary from counties where the property is located other than the county where the proceeding is commenced.
  2. Compensation. —  The clerk of the superior court shall fix the compensation of commissioners for the partition of real property according to G.S. 1-408 .
  3. Oath. —  The commissioners shall be sworn according to Chapter 11 of the General Statutes.
  4. Delay or Neglect. —  If, after accepting the commission, any of the commissioners unreasonably delays or neglects to perform his or her duties as a commissioner, the court may remove the commissioner and appoint a new commissioner.

History. 1868-9, c. 122, ss. 1, 2, 10; Code, ss. 1892, 1893, 1901; Rev., ss. 2487, 2492, 2498; C.S. 3219, 3220, 3221; Ex. Sess. 1924, c. 62, s. 2; 1945, c. 472; 1949, c. 975; 1953, c. 48; 1971, c. 1185, s. 8; 2020-23, ss. 2(i)-(l), 3.

Cross References.

As to form of oath, see G.S. 11-11 .

Local Modification.

Guilford: 1951, c. 977, s. 1; Harnett: 1951, c. 1170; Stokes: 1959, c. 531.

Editor’s Note.

Subsection (a) of this section is former G.S. 46-7 , as recodified by Session Laws 2020-23, s. 2(i), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under former G.S. 46-7 .

Subsection (b) of this section is former G.S. 46-7.1 , as recodified by Session Laws 2020-23, s. 2(j), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Subsection (c) of this section is former G.S. 46-8 , as recodified by Session Laws 2020-23, s. 2(k), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Subsection (d) of this section is former G.S. 46-9 , as recodified by Session Laws 2020-23, s. 2( l ), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-7 or prior law.

Drawing by Two Commissioners to Determine Allotment. —

Where the court in a partitioning proceeding ordered that “the commissioners” conduct a lottery before the clerk to determine the allotment of the separate parcels, the absence of one of the three commissioners because of illness when the drawing before the clerk was held did not invalidate the drawing. Dunn v. Dunn, 37 N.C. App. 159, 245 S.E.2d 580, 1978 N.C. App. LEXIS 2674 (1978).

Approval of Report Based on Findings of Two Appraisers. —

Where testator’s children selected three appraisers in accordance with the will, but prior to final report one of the appraisers died, whereupon the court ordered the two surviving appraisers to complete the appraisal and file a report, which report was later approved by the court, it was held that under the terms of the will and under this section, it was necessary that three appraisers act in the matter, although two of them could file the report, pursuant to G.S. 46-17 , and the court should have appointed a third appraiser, so that the approval of the report based upon the findings of only two appraisers was reversible error. Sharpe v. Sharpe, 210 N.C. 92 , 185 S.E. 634, 1936 N.C. LEXIS 26 (1936).

Assignment by Coin Flip. —

Where commissioners properly divided property into two sections that were nearly equal, assigning the property by flipping a coin was not improper. Robertson v. Robertson, 126 N.C. App. 298, 484 S.E.2d 831, 1997 N.C. App. LEXIS 360 (1997).

§ 46A-51. Commissioners to inspect and partition real property; apportioning shares; charging owelty on shares of disproportionately greater value.

  1. Apportioning Shares; Charging Owelty on Shares. —  The commissioners together shall inspect the real property and partition it among the cotenants by apportioning it into shares proportionate in value as nearly as possible to the cotenants’ interests in the property. To the extent the commissioners find it necessary to make an equitable partition, they may do any of the following:
    1. Apportion the property into shares disproportionate in value to the cotenants’ interests in the property and charge owelty on the shares of disproportionately greater value in the amounts of money necessary to redress the disproportion, to be paid to the shares of disproportionately lesser value.
    2. Adjust the shares or any owelty charged on the shares to account for a court order for contribution under G.S. 46A-27 or any other court order.
  2. Interest on Owelty. —  Owelty shall bear interest at the legal rate under G.S. 24-1 until paid.
  3. Minor’s Share. —  If a share charged with owelty is apportioned to a minor, the money shall not be payable until the minor becomes 18 years old. If the minor has a guardian of the estate or general guardian, however, the guardian shall pay the money when the guardian receives assets belonging to the minor, other than the share, that may be used for that purpose. If the guardian fails to comply with this subsection, the guardian shall be personally liable for any interest that accrued due to the failure.

History. 1868-9, c. 122, ss. 3, 8, 9; Code, ss. 1894, 1899, 1900; 1887, c. 284, s. 2; Rev., ss. 2491, 2496, 2497; C.S., ss. 3222, 3223, 3224; 1971, c. 1231, s. 1; 1995, c. 379, s. 14(b); 2020-23, ss. 2(m)-(o), 3.

Editor’s Note.

Subsection (a) of this section is former G.S. 46-10 , as recodified by Session Laws 2020-23, s. 2(m), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Subsection (b) of this section is former G.S. 46-11 , as recodified by Session Laws 2020-23, s. 2(n), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Subsection (c) of this section is former G.S. 46-12 , as recodified by Session Laws 2020-23, s. 2(o), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-10 through 46-12 or prior law.

Owelty may be enforced against land inherited by infants from an adult who owned the land when the owelty was made a charge against it, though as to land partitioned to an infant cotenant owelty is not payable until he reaches his majority. Powell v. Weatherington, 124 N.C. 40 , 32 S.E. 380, 1899 N.C. LEXIS 12 (1899).

Section Applies Only to Compulsory Partition. —

Where partition is not compulsory but is under an agreement between cotenants, this section is not applicable. Newsome v. Harrell, 168 N.C. 295 , 84 S.E. 337, 1915 N.C. LEXIS 38 (1915); Outlaw v. Outlaw, 184 N.C. 255 , 114 S.E. 4, 1922 N.C. LEXIS 66 (1922).

Actual partition must be on the basis of the division made by the commissioners and not otherwise. Allen v. Allen, 258 N.C. 305 , 128 S.E.2d 385, 1962 N.C. LEXIS 673 (1962).

Authority of Commissioners and Effect of Partition. —

In partition proceedings, the duty of the commissioners is to make actual partition among the tenants in common and to make a full report thereof; they have no other function. The allotment of the respective shares in partition proceedings creates no new estate and conveys no title, the sole effect thereof being to sever the unity of possession and to fix the physical boundaries of the tracts. Therefore, no title vests in the commissioners, and after confirmation of their report they have no further authority, and purported deeds executed by them to the several tenants convey nothing. McLamb v. Weaver, 244 N.C. 432 , 94 S.E.2d 331, 1956 N.C. LEXIS 428 (1956).

Validity of Action of Two Commissioners. —

Two commissioners may fill the vacancy caused by the absence of the third commissioner, when done in the presence of the interested parties and without their objection. Simmons v. Foscue, 81 N.C. 86 , 1879 N.C. LEXIS 146 (1879).

Where three commissioners are appointed to partition land the action of any two of them is valid. Thompson v. Shemwell, 93 N.C. 222 , 1885 N.C. LEXIS 43 (1885).

The court’s approval of a report based upon the findings of only two appraisers or commissioners was held reversible error in Sharpe v. Sharpe, 210 N.C. 92 , 185 S.E. 634, 1936 N.C. LEXIS 26 (1936).

By the very terms of G.S. 46-17 , the signature of two of the commissioners to their report is sufficient. Thompson v. Shemwell, 93 N.C. 222 , 1885 N.C. LEXIS 43 (1885); Sharpe v. Sharpe, 210 N.C. 92 , 185 S.E. 634, 1936 N.C. LEXIS 26 (1936).

Existing Easements. —

It would seem that existing easements are not destroyed by a division in partition. See Jones v. Swindell, 176 N.C. 34 , 96 S.E. 663, 1918 N.C. LEXIS 176 (1918).

Improvements. —

Where in a partition an excessive portion is allotted to one individual, but is reduced on a reallotment, that individual cannot be allowed for improvements made on the excess, as it was his own folly to make them before obtaining a final decree and his deed. Carland v. Jones, 55 N.C. 506 , 1856 N.C. LEXIS 205 (1856).

A tenant in common is entitled to recover against a cotenant for betterments he has placed on the land. Daniel v. Dixon, 163 N.C. 137 , 79 S.E. 425, 1913 N.C. LEXIS 135 (1913).

Where no appeal is taken from the order allowing for improvements, it precludes the plaintiff from having the good faith of the defendant in making the improvements inquired into. Fisher v. Toxaway Co., 171 N.C. 547 , 88 S.E. 887, 1916 N.C. LEXIS 125 (1916).

Basis of Owelty. —

The right to owelty on an unequal partition is based on the implied warranty attaching to each share from all the others. Nixon v. Lindsay, 55 N.C. 230 , 1855 N.C. LEXIS 198 (1855); Cheatham v. Crews, 88 N.C. 38 , 1883 N.C. LEXIS 15 (1883).

Equality in value must be afforded by the assessment of an owelty charge. Moore v. Baker, 224 N.C. 498 , 31 S.E.2d 526, 1944 N.C. LEXIS 413 (1944).

Owelty Is Not a Mere Lien Debt. —

The charge in partition upon the more valuable shares is not a mere debt secured by lien. The debtor is a tenant in common with the holder of the share in whose favor the decree is entered to the extent of the charge, until the same shall be satisfied. Ex parte Walker, 107 N.C. 340 , 12 S.E. 136, 1890 N.C. LEXIS 67 (1890).

Charge upon the Land. —

The sums charged upon “the more valuable dividends” in partitions of lands are charges, not upon the persons of the owners of such dividends, but upon the land alone. Young v. Trustees of Davidson College, 62 N.C. 261 , 1867 N.C. LEXIS 50 (1867).

Owelty Follows Land. —

Charges upon land for equality of partition follow the land into the hands of all persons to whom it may come; and they are held to be affected by constructive notice. Dobbin v. Rex, 106 N.C. 444 , 11 S.E. 260 (1890); Powell v. Weatherington, 124 N.C. 40 , 32 S.E. 380 (1899). As to the docketing of owelty charges, see G.S. 46-21 .

When Land Charged with Payment of Several Shares. —

Payment under execution of the charge in favor of one share does not discharge the land in the hands of the purchaser from the payment of a charge in favor of another share. Meyers v. Rice, 107 N.C. 24 , 12 S.E. 66, 1890 N.C. LEXIS 4 (1890).

A discharge in bankruptcy does not cancel the charge of owelty of partition against the land of the bankrupt. Ex parte Walker, 107 N.C. 340 , 12 S.E. 136, 1890 N.C. LEXIS 67 (1890).

Charges for equality of partition should be enforced by proceedings in rem against the more valuable shares of the land divided, and not by personal judgments against the owners thereof. Young v. Trustees of Davidson College, 62 N.C. 261 , 1867 N.C. LEXIS 50 (1867); Waring v. Wadsworth, 80 N.C. 345 , 1879 N.C. LEXIS 90 (1879); Meyers v. Rice, 107 N.C. 24 , 12 S.E. 66, 1890 N.C. LEXIS 4 (1890).

A motion in the cause for execution is the proper proceeding to subject land charged with owelty of partition to the payment thereof. Meyers v. Rice, 107 N.C. 24 , 12 S.E. 66, 1890 N.C. LEXIS 4 (1890).

Parties to Action to Recover Owelty. —

The widow of the party upon whose land a charge was placed was not a necessary party to an action brought to recover the sum charged. Ruffin v. Cox, 71 N.C. 253 , 1874 N.C. LEXIS 67 (1874).

Counterclaim. —

A cotenant who is charged in partition proceedings with owelty may set up by way of counterclaim damages sustained by his eviction from part of the land awarded to him. Huntley v. Cline, 93 N.C. 458 , 1885 N.C. LEXIS 92 (1885).

Division of Costs. —

The costs in proceedings for partition, including the expenses of the partition, are charges upon the several shares in proportion to their respective values. Hinnant v. Wilder, 122 N.C. 149 , 29 S.E. 221, 1898 N.C. LEXIS 212 (1898).

Costs Precede Homestead Exemption. —

Where, in an ex parte proceeding for the partition of lands, partition was duly made and one part was assigned in severalty to A, and A failed to pay the costs adjudged against her and the share allotted to her was sold on execution issued on the judgment, and no homestead was allotted to A, who had no other land, and her interest was not worth $1,000.00, in an action by the heirs of A against the purchaser at the execution sale, the sale was held to be valid. Hinnant v. Wilder, 122 N.C. 149 , 29 S.E. 221, 1898 N.C. LEXIS 212 (1898).

Confirmation Necessary to Execution. —

No execution can issue to satisfy a charge against land in partition proceedings until the commissioners’ report has been confirmed. In re Ausborn, 122 N.C. 42 , 29 S.E. 56, 1898 N.C. LEXIS 187 (1898).

Assignment by Coin Flip. —

Where commissioners properly divided property into two sections that were nearly equal, assigning the property by flipping a coin was not improper. Robertson v. Robertson, 126 N.C. App. 298, 484 S.E.2d 831, 1997 N.C. App. LEXIS 360 (1997).

Separately Owned Property. —

When partitioning property, such factors as separately owned property may in the discretion of the commissioners be considered; however, such consideration is not required. Robertson v. Robertson, 126 N.C. App. 298, 484 S.E.2d 831, 1997 N.C. App. LEXIS 360 (1997).

Distribution of Proceeds in Proportion to Contribution. —

Because the trial court has the power to adjust all equities between the parties with respect to the property to be partitioned, the trial court committed no error under G.S. 46-10 , by distributing the net proceeds of the property according to petitioner’s and respondent’s respective rights and interests therein and finding that the equities favored an unequal distribution in order to compensate petitioner for his additional contribution toward the purchase of the property. Tarr v. Zalaznik, 264 N.C. App. 597, 826 S.E.2d 245, 2019 N.C. App. LEXIS 233 (2019).

Superior Court Did Not Abuse Its Discretion by Confirming Partition. —

Superior court did not abuse its discretion by confirming the partition of property by a commissioners’ report because all the parties 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 N.C. App. LEXIS 195 (2019).

§ 46A-52. Partition where cotenants unknown or title disputed.

  1. If there are any cotenants whose names are not known or whose title is in dispute, the shares of those cotenants shall be apportioned together as one parcel.
  2. In any partition proceeding, if two or more cotenants appear as respondents claiming the same undivided interest in the real property to be partitioned, or if any part of the undivided interest claimed by the petitioner is disputed by any respondent, it shall not be necessary to decide on their respective claims before the court orders an actual partition or partition sale of the property. The controversy between the contesting parties may be afterwards decided either in the same or an independent proceeding.

History. 1868-9, c. 122, s. 3; Code, s. 1894; 1887, c. 284, ss. 2, 4; Rev., ss. 2491, 2511; C.S., s. 3225; 1937, c. 98; 2020-23, ss. 2(p), 3.

Editor’s Note.

This section is former G.S. 46-13 , as recodified by Session Laws 2020-23, s. 2(p), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

§ 46A-53. Apportionment of shares in common.

When requested by two or more cotenants, the commissioners may, by order of the court, apportion their several shares to them in common, as one parcel, so long as the apportionment is not injurious or detrimental to any cotenant.

History. 2020-23, s. 3.

Editor’s Note.

Session Laws 2020-23, s. 18, made this section, as added by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§ 46A-54. Dedication of streets.

Upon motion of any party or the commissioners, the clerk may authorize the commissioners to propose in their report the dedication of portions of the real property that are necessary as a means of access to any share or that are otherwise advisable for public or private highways, streets, or alleys. The court shall consider the proposal as a part of the report and, if approved by the court, it shall constitute a dedication. Only a dedication approved by a judge of the superior court affects the interest of a minor, an incompetent adult, or another person under a legal disability.

History. 1969, c. 45; 2020-23, ss. 2(t), 3.

Editor’s Note.

This section is former G.S. 46-17.1 , as recodified by Session Laws 2020-23, s. 2(t), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

§ 46A-55. Report of commissioners; contents; filing and service; extension; map.

  1. Report. —  The commissioners shall file a report of their proceedings in the office of the clerk of superior court within 90 days after the last commissioner receives a notice of appointment. The report shall be signed by at least two commissioners and shall describe particularly the real property or parcels of real property apportioned, the share apportioned to each cotenant in severalty, and any owelty charged. The clerk of the superior court may, for good cause shown, extend the time for filing the report for an additional period not exceeding 60 days. At the time of filing, the commissioners shall serve a copy of the report on all the parties.
  2. Map. —  The commissioners may employ a disinterested professional land surveyor to prepare a map of the real property showing the quantity, courses, and distances of each share. If a map is prepared, the map shall accompany and form a part of the report of the commissioners.

History. 1868-9, c. 122, ss. 4, 5; Code, ss. 1895, 1896; Rev., ss. 2493, 2494; C.S., ss. 3228, 3229; 1949, c. 16; 2009-362, s. 1; 2020-23, ss. 2(s), (u), 3.

Editor’s Note.

Subsection (a) of this section is former G.S. 46-17 , as recodified by Session Laws 2020-23, s. 2(s), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Subsection (b) of this section is former G.S. 46-18 , as recodified by Session Laws 2020-23, s. 2(u), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2009-362, s. 1, effective October 1, 2009, in the first sentence, substituted “90 days” for “60 days,” and in the second sentence, substituted “the clerk’s discretion” for “his discretion” near the middle.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-17 and, G.S. 46-18 or prior law.

Alteration of Registered Report Not Authorized. —

The report of commissioners in partition proceedings, dividing land, when filed, approved, confirmed, recorded and registered, becomes a muniment of title, and the commissioners, without the order and approval of the court, have no right to alter or change the same. Clinard v. Brummell, 130 N.C. 547 , 41 S.E. 675, 1902 N.C. LEXIS 100 (1902).

Findings as to Value Not Reviewable. —

The findings of commissioners on value are not subject to review in the appellate court. Fisher v. Toxaway Co., 171 N.C. 547 , 88 S.E. 887, 1916 N.C. LEXIS 125 (1916); Allen v. Allen, 258 N.C. 305 , 128 S.E.2d 385, 1962 N.C. LEXIS 673 (1962); Pearson v. McKenney, 5 N.C. App. 544, 169 S.E.2d 46, 1969 N.C. App. LEXIS 1393 (1969).

Two commissioners can make the report, under the express terms of this section. Thompson v. Shemwell, 93 N.C. 222 , 1885 N.C. LEXIS 43 (1885); Sharpe v. Sharpe, 210 N.C. 92 , 185 S.E. 634, 1936 N.C. LEXIS 26 (1936).

The mere fact that the commissioners did not file their report within the statutory period of 60 days after notification did not vitiate the report or preclude confirmation. Thompson v. Thompson, 235 N.C. 416 , 70 S.E.2d 495, 1952 N.C. LEXIS 426 (1952).

Commissioners Not Required to Hear Tenants in Common. —

There is no statutory requirement that commissioners appointed to partition land shall hear and consider evidence offered by the tenants in common or their contentions prior to or at the time of making partition. Allen v. Allen, 263 N.C. 496 , 139 S.E.2d 585, 1965 N.C. LEXIS 1314 (1965).

§ 46A-56. Confirmation of report; appeal; motion for relief.

  1. If no exception to the report of the commissioners is filed within 10 days of service of the report on all the parties, the clerk shall confirm the report.
  2. If an exception to the report of commissioners is filed, the clerk shall do one of the following:
    1. Confirm the report.
    2. Recommit the report for correction or further consideration.
    3. Vacate the report and direct the same commissioners to reapportion the real property.
    4. Vacate the report, discharge the commissioners, and appoint new commissioners to view the real property and partition it.
  3. Appeal from the clerk to superior court of an order of confirmation of the report of commissioners is governed by G.S. 1-301.2 except that the judge may take only the actions specified in subsection (b) of this section and shall not adjudge a partition of the property different from that made by the commissioners.
  4. After confirmation of the report, any party may seek relief from the order of confirmation for mistake, fraud, or collusion by a motion in the proceeding. This relief, however, shall not affect an innocent purchaser for value and without notice.

History. 1868-9, c. 122, s. 5; Code, s. 1896; Rev., s. 2494; C.S., s. 3230; 1947, c. 484, s. 2; 1999-216, s. 11; 2020-23, ss. 2(v), 3.

Editor’s Note.

This section is former G.S. 46-19 , as recodified by Session Laws 2020-23, s. 2(v), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-19 or prior law.

“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 N.C. App. LEXIS 3438 (1980), rev'd, 303 N.C. 274 , 278 S.E.2d 256, 1981 N.C. LEXIS 1096 (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 N.C. App. LEXIS 3182 (1983).

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 N.C. LEXIS 116 (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 N.C. LEXIS 673 (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 N.C. LEXIS 318 (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 N.C. LEXIS 115 (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 N.C. LEXIS 350 (1906); Macon v. Edinger, 49 N.C. App. 624, 272 S.E.2d 411, 1980 N.C. App. LEXIS 3438 (1980), rev'd, 303 N.C. 274 , 278 S.E.2d 256, 1981 N.C. LEXIS 1096 (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 N.C. LEXIS 673 (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 N.C. App. LEXIS 195 (2019).

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 N.C. LEXIS 673 (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 N.C. LEXIS 673 (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 N.C. LEXIS 673 (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 N.C. LEXIS 111 (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 N.C. LEXIS 673 (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 N.C. LEXIS 673 (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 N.C. LEXIS 673 (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 N.C. LEXIS 595 (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 N.C. App. LEXIS 369 (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 N.C. LEXIS 116 (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 N.C. LEXIS 104 (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 N.C. LEXIS 1314 (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 N.C. LEXIS 250 (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 N.C. LEXIS 375 (1926).

§ 46A-57. Report and confirmation enrolled and registered; effect.

The report of the commissioners, when confirmed, and the order of confirmation shall be enrolled and certified to the register of deeds and registered in the office of each county where the real property is located. The confirmed report is binding among and between the parties and the parties’ heirs and assigns.

History. 1868-9, c. 122, s. 6; Code, s. 1897; Rev., s. 2495; C.S., s. 3231; 1965, c. 804; 2020-23, ss. 2(w), 3.

Editor’s Note.

This section is former G.S. 46-20 , as recodified by Session Laws 2020-23, s. 2(w), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-20 or prior law.

Effect of Adjudication Before Clerk. —

Matters not in issue and claims for different rights are not concluded by partition proceedings before the clerk. Gillans v. Edmonson, 153 N.C. 602 , 69 S.E. 9, 1910 N.C. LEXIS 136 (1910).

In proceedings to partition lands among tenants in common, the adjudication before the clerk operates as an estoppel as to them and those in privity with them, when no appeal has been taken. Southern State Bank v. Leverette, 187 N.C. 743 , 123 S.E. 68, 1924 N.C. LEXIS 390 (1924).

Color of Title. —

The record of partition proceedings constitutes color of title. Lindsay v. Beaman, 128 N.C. 189 , 38 S.E. 811, 1901 N.C. LEXIS 365 (1901).

Admissibility of Record in Evidence. —

The record of the proceedings is admissible in evidence even if it is not recorded as required by this section. Lindsay v. Beaman, 128 N.C. 189 , 38 S.E. 811, 1901 N.C. LEXIS 365 (1901).

§ 46A-58. Clerk to docket owelty.

If the court orders owelty, the clerk shall enter the owelty on the judgment docket in the same manner as judgments are entered on the docket. The clerk shall mark as plaintiffs on the judgment docket persons whose shares are to be paid owelty, and the clerk shall mark as defendants on the judgment docket persons whose shares are charged with owelty. The entry on the docket shall contain the title of the special proceeding in which the property was partitioned. When owelty is paid, the entry upon the judgment docket shall be marked satisfied in the same manner as judgments are cancelled and marked satisfied, and the clerk shall be entitled to the same fees for entering this judgment as the clerk is entitled to for docketing other judgments. The docketing of owelty under this section does not release the property from the owelty. Any judgment docketed under this section is not a lien on any property other than the property charged with owelty.

History. 1911, c. 9, s. 1; C.S., s. 3232; 2020-23, ss. 2(x), 3.

Editor’s Note.

This section is former G.S. 46-21 , as recodified by Session Laws 2020-23, s. 2(x), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case note for this section was decided under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

The case note below was decided under former G.S. 46-21 or prior law.

Effect of Failure to Docket. —

Failure of the clerk to docket the owelty of partition upon his judgment docket within 7 years after confirmation of the report did not affect the right of plaintiff to enforce payment of the owelty by execution. Cochran v. Colson, 192 N.C. 663 , 135 S.E. 794, 1926 N.C. LEXIS 375 (1926).

§ 46A-59. Order for possession.

  1. An order for possession of real property apportioned pursuant to this Part, in favor of the party to which an apportionment has been made and against any party in possession at the time of application therefor, may be issued by the clerk of the superior court if all of the following apply:
    1. No appeal from the order of confirmation of the report of commissioners has been made within the time prescribed under G.S. 1-301.2 , or if an appeal has been made, the judge confirmed the report pursuant to G.S. 46A-56 (c).
    2. The report and confirmation have been duly recorded in the office of the register of deeds pursuant to G.S. 46A-57 .
    3. Ten days’ notice has been given by the party applying for the order for possession to each party remaining in possession at the time application is made. The notice shall not be given until the clerk has confirmed the report of the commissioners pursuant to G.S. 46A-56 .
  2. An order for possession issued pursuant to this section shall be directed to the sheriff and shall authorize the sheriff to remove all occupants and their personal property from the real property and to put the party to which an apportionment has been made in possession. The order shall be executed in accordance with the procedure for executing a writ or order for possession in a summary ejectment proceeding under G.S. 42-36.2 . The party to which an apportionment has been made has the same rights and remedies in connection with the execution of an order for possession and the disposition of personal property following execution as are provided to a landlord under State law, including Chapters 42 and 44A of the General Statutes.

History. 2020-23, s. 3.

Editor’s Note.

Session Laws 2020-23, s. 18, made this section, as added by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

§§ 46A-60 through 46A-74.

Reserved for future codification purposes.

Part 3. Partition Sale.

§ 46A-75. Sale in lieu of actual partition.

  1. Subject to G.S. 46A-29(b), the court shall order a sale of the real property described in the petition, or of any part of the property, under this Part only if it finds by a preponderance of the evidence that an actual partition of the property pursuant to Part 2 of this Article cannot be made without substantial injury to any of the parties, after having considered evidence in favor of actual partition and evidence in favor of a sale presented by any of the parties. The party seeking a sale of the property has the burden of proving substantial injury under this section.
  2. In determining whether an actual partition would cause substantial injury to any of the parties, the court shall consider all of the following:
    1. Whether the fair market value of each cotenant’s share in an actual partition of the property would be materially less than the amount each cotenant would receive from the sale of the whole.
    2. Whether an actual partition would result in material impairment of any cotenant’s rights.
    3. Whether charging owelty under G.S. 46A-51 would eliminate or mitigate any substantial injury to any of the parties caused by an actual partition.
  3. If the court orders a partition sale, the court shall make specific findings of fact and conclusions of law supporting the order.
  4. As provided in G.S. 46A-52 , if two or more parties claim the same undivided interest in the property, the court is not required to decide the issue before ordering a partition sale of the property.

History. 1868-9, c. 122, ss. 13, 31; Code, ss. 1904, 1921; Rev., s. 2512; C.S., s. 3233; 1985, c. 626, s. 1; 2009-512, s. 2; 2020-23, ss. 2(y), 3.

Cross References.

As to power of court to enter judgment for money due on judicial sales, see G.S. 1-243 .

Editor’s Note.

Partition Sales Study Committee. Session Laws 2008-181, ss. 42.1 and 42.2, created the Partition Sales Study Committee to address the issue of the impact of the partition sale procedures on the economic use and loss of heir property and farmland by heirs in North Carolina and provided for membership of the committee.

Session Laws 2008-181, s. 42.3, provides: “The Committee shall study the laws and procedures concerning partition sales in North Carolina and how these laws affect landowners in the State, examining both the effectiveness and equity of the current law and exploring potential alternatives. Specifically, the Committee shall:

“(1) Review information about partition sales and examine current trends in partition sales in the State, especially related to sales initiated by strangers in interest to heirs or related cotenants.

“(2) Analyze research and information from North Carolina and other states and jurisdictions regarding the effect of partition laws on desired land retention and economic development.

“(3) Analyze information concerning the comparative frequency of partition sales vs. partition-in-kind in North Carolina.

“(4) Identify and assess alternative partition sales laws from other states.

“(5) Explore how best to balance competing interests of the tenants in common in the partition sales context.

“(6) Identify and consult with academics who have studied partition sales nationally to determine their recommendations concerning best practices in partition proceedings.

“(7) Identify current barriers to the adoption of best practices recommendations and to alternative laws adopted by other states and potential options to address these barriers.

“(8) Prepare a report with a statement of the issues and a summary of the research including the Committee’s recommendations concerning any needed improvements and draft legislation to address any inequities presented by partition sales in North Carolina.”

Session Laws 2008-181, s. 42.4, provided for expenses, staffing, and powers and duties of committee members.

Session Laws 2008-181, s. 42.5, provides: “The Committee shall submit a final report of the results of its study, including any legislative recommendations, to the 2009 General Assembly no later than March 1, 2009. The Committee shall terminate on March 1, 2009, or upon the filing of its final report, whichever occurs first.”

Pursuant to Session Laws 2011-266, ss. 2 and 2.6, the statutory requirements of the Partition Sales Study Committee, established by S.L. 2008-181, have been met and this body is no longer authorized to meet, provide recommendations, or operate in any capacity.

Editor’s Note.

Editor’s Note. This section is former G.S. 46-22 , as recodified by Session Laws 2020-23, s. 2(y), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2009-512, s. 2, effective October 1, 2009, and applicable to partition actions filed on or after that date, in subsection (a), added “Subject to G.S. 46-22.1(b),” at the beginning and added “after having considered evidence in favor of actual partition and evidence in favor of a sale presented by any of the interested parties” at the end of the subsection; rewrote subsection (b); added subsection (b1); and substituted “make specific findings of fact and conclusions of law” for “specifically find the facts” in subsection (c).

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

For comment, “Time Sharing: The North Carolina General Assembly’s Response to Ownership of Time Share Contracts,” see 15 N.C. Cent. L.J. 56 (1984).

For comment, “Is It All About the Money? Considering a Multi-factor Test for Determining the Appropriateness of Forced Partition Sales in North Carolina,” see 33 Campbell L. Rev. 411 (2011).

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-22 or prior law.

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, 2018 Bankr. LEXIS 2063 (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, 2018 Bankr. LEXIS 2063 (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 N.C. LEXIS 573 (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 N.C. App. LEXIS 609 (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 N.C. LEXIS 116 (1911); Horne v. Horne, 261 N.C. 688 , 136 S.E.2d 87, 1964 N.C. LEXIS 573 (1964). See Gillespie v. Allison, 115 N.C. 542 , 20 S.E. 627, 1894 N.C. LEXIS 269 (1894); Seawell v. Seawell, 233 N.C. 735 , 65 S.E.2d 369, 1951 N.C. LEXIS 389 (1951); Batts v. Gaylord, 253 N.C. 181 , 116 S.E.2d 424, 1960 N.C. LEXIS 479 (1960); Coats v. Williams, 261 N.C. 692 , 136 S.E.2d 113, 1964 N.C. LEXIS 584 (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 N.C. LEXIS 1123 (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 N.C. App. LEXIS 1144 (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, 1978 N.C. App. LEXIS 2752 , cert. denied, 295 N.C. 647 , 248 S.E.2d 252, 1978 N.C. LEXIS 1093 (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 N.C. LEXIS 91 (1937); Seawell v. Seawell, 233 N.C. 735 , 65 S.E.2d 369, 1951 N.C. LEXIS 389 (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 N.C. LEXIS 1275 (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 N.C. LEXIS 1123 (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, 1978 N.C. App. LEXIS 2752 , cert. denied, 295 N.C. 647 , 248 S.E.2d 252, 1978 N.C. LEXIS 1093 (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 N.C. App. LEXIS 333 (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 N.C. LEXIS 233 (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 N.C. LEXIS 1275 (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 N.C. LEXIS 389 (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 N.C. LEXIS 1275 (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 N.C. LEXIS 1275 (1965); Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, 1978 N.C. App. LEXIS 2752 , cert. denied, 295 N.C. 647 , 248 S.E.2d 252, 1978 N.C. LEXIS 1093 (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 N.C. LEXIS 1275 (1965); Phillips v. Phillips, 37 N.C. App. 388, 246 S.E.2d 41, 1978 N.C. App. LEXIS 2752 , cert. denied, 295 N.C. 647 , 248 S.E.2d 252, 1978 N.C. LEXIS 1093 (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 N.C. LEXIS 1275 (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, 1978 N.C. App. LEXIS 2752 , cert. denied, 295 N.C. 647 , 248 S.E.2d 252, 1978 N.C. LEXIS 1093 (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 N.C. LEXIS 192 (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 N.C. LEXIS 192 (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 N.C. LEXIS 1123 (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 N.C. LEXIS 1275 (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. Pinner, 120 N.C. 455 , 27 S.E. 123, 1897 N.C. LEXIS 103 (1897); Vanderbilt v. Roberts, 162 N.C. 273 , 78 S.E. 156, 1913 N.C. LEXIS 343 (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. 469, 1928 N.C. LEXIS 192 (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 N.C. LEXIS 478 (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 N.C. App. LEXIS 1240 (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 N.C. App. LEXIS 2450 (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 N.C. App. LEXIS 754 (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, 1978 N.C. App. LEXIS 2752 , cert. denied, 295 N.C. 647 , 248 S.E.2d 252, 1978 N.C. LEXIS 1093 (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 N.C. LEXIS 463 (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 N.C. LEXIS 192 (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 N.C. LEXIS 192 (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 N.C. LEXIS 251 (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 N.C. LEXIS 76 (1907). See also, Credle v. Baugham, 152 N.C. 18 , 67 S.E. 46, 1910 N.C. LEXIS 195 (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 N.C. LEXIS 192 (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 N.C. LEXIS 676 (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 N.C. App. LEXIS 139 (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 N.C. LEXIS 21 (1903); Tayloe v. Carrow, 156 N.C. 6 , 72 S.E. 76, 1911 N.C. LEXIS 116 (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 N.C. LEXIS 237 (1940).

§ 46A-76. Sale procedure.

  1. General. —  The procedure for a partition sale is the same as is provided in Article 29A of Chapter 1 of the General Statutes, except as provided in this Part.
  2. One Commissioner Sufficient. —  In a partition sale, the court is not required to appoint more than one commissioner.
  3. Persons Not to Be Appointed. —  The clerk of the superior court shall not appoint the clerk, an assistant clerk, or a deputy clerk to make a sale of the real property.
  4. Additional Requirement; Notice of Public Sale. —  If the court orders a public sale, the commissioner shall certify to the court that at least 20 days prior to sale, a copy of the notice of sale was sent by first-class mail to the last known address of all parties previously served pursuant to G.S. 1A-1 , Rule 4(j). An affidavit from the commissioner that copies of the notice of sale were mailed to all parties entitled to notice in accordance with this section satisfies the certification requirement and shall also be deemed prima facie true.

History. 1868-9, c. 122, ss. 13, 15, 31; Code, ss. 1904, 1906, 1921; 1899, c. 161; Rev., ss. 2512, 2513; C.S., ss. 3239, 3242; 1949, c. 719, s. 2; 1985, c. 626, s. 2; 1987, c. 282, s. 7; 2009-512, s. 4; 2020-23, ss. 2(ff), (mm), 3.

Editor’s Note.

Session Laws 2009-512, s. 4, which added “except as provided herein” at the end of subsection (a), and added subsection (c), was effective October 1, 2009, and applicable to partition actions filed on or after that date.

Subsections (a) and (d) of this section are former G.S. 46-28(a), (b), as recodified by Session Laws 2020-23, s. 2(ff), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Subsection (c) of this section is former G.S. 46-31 , as recodified by Session Laws 2020-23, s. 2(mm), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2009-512, s. 4, effective October 1, 2009, and applicable to partition actions filed on or after that date, added “except as provided herein” at the end of subsection (a); and added subsection (c).

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-28 and 46-31 or prior law.

Relationship to Bankruptcy Law. —

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, 2018 Bankr. LEXIS 2063 (Bankr. E.D.N.C. 2018).

Failure of Court to Make Required Findings. —

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 N.C. App. LEXIS 2450 (2010).

For condemnation of the practice of clerks appointing themselves to make partition sales, prior to enactment of this section, see Evans v. Cullens, 122 N.C. 55 , 28 S.E. 961, 1898 N.C. LEXIS 190 (1898).

§ 46A-77. Cotenant credit.

Any cotenant entering the high bid or offer at any sale of one hundred percent (100%) of the undivided interests in any parcel of real property shall receive a credit for the undivided interest the cotenant already owns in the real property and shall receive a corresponding reduction in the amount of the total purchase price owed after deducting the costs and fees associated with the sale and allocating the costs and fees associated with the sale in accordance with the orders of the court. The high bid or offer shall be for one hundred percent (100%) of the undivided interests in the parcel of real property sold, and the credit and reduction shall be applied at the time of the closing of the cotenant’s purchase of the real property. When two or more cotenants jointly make the high bid or offer at the sale, they may receive at the closing an aggregate credit and reduction in the amount of the total purchase price representing the total of their undivided interests in the real property. Any credits and reductions allowed by this subsection shall be further adjusted to reflect any court-ordered adjustments to the share of the net sale proceeds of each of the cotenants entering the high bid or offer, including, but not limited to, equitable adjustments to the share of the net sales proceeds due to a court finding of the lack of contribution of one or more cotenants to the payment of carrying costs or improvements of the real property under G.S. 46A-27 .

History. 1868-9, c. 122, ss. 13, 31; Code, ss. 1904, 1921; Rev., s. 2512; C.S., s. 3239; 1949, c. 719, s. 2; 1985, c. 626, s. 2; 1987, c. 282, s. 7; 2009-512, s. 4; 2020-23, ss. 2(gg), 3.

Editor’s Note.

Session Laws 2009-512, s. 4, which added “except as provided herein” at the end of subsection (a), and added subsection (c), was effective October 1, 2009, and applicable to partition actions filed on or after that date.

This section is former G.S. 46-28(c), as recodified by Session Laws 2020-23, s. 2(gg), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2009-512, s. 4, effective October 1, 2009, and applicable to partition actions filed on or after that date, added “except as provided herein” at the end of subsection (a); and added subsection (c).

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

§ 46A-78. Partition sale of real property subject to a life estate.

If the real property to be partitioned by sale is subject to a life estate, a life tenant who joins in the proceeding shall receive the value of the life tenant’s share calculated according to mortality tables accepted by the court and paid out of the proceeds to the life tenant. The owners of the remainder or reversionary interest have no interest in this payment to the life tenant.

History. 1887, c. 214, s. 3; Rev., s. 2509; C.S., s. 3235; 2020-23, ss. 2(bb), 3.

Cross References.

For mortuary tables and tables applicable to annuities, see G.S. 8-46 and 8-47.

Editor’s Note.

This section is former G.S. 46-24 , as recodified by Session Laws 2020-23, s. 2(bb), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-24 or prior law.

Life Estate May Not Be Sold Without Consent of Life Tenant. —

While the life tenant during the existence of her estate may waive her rights and consent to the sale of her estate, under this section, this may not be done, against her will, in a partition proceeding. Priddy & Co. v. Sanderford, 221 N.C. 422 , 20 S.E.2d 341, 1942 N.C. LEXIS 478 (1942).

Waiver of Rights by Life Tenants. —

Under a will providing that the “home place shall remain a home for all the single members of the family as long as they shall live, if they choose to do so, and then be divided between the next of kin,” single members of the family were entitled to partition of the home place among remaindermen as directed by will, where they showed the court that they no longer desired to retain it as a home, since the life tenants could waive the right if they desired to enjoy their share in severalty. Sides v. Sides, 178 N.C. 554 , 101 S.E. 100, 1919 N.C. LEXIS 501 (1919).

Life Tenants May Not Maintain Partition Proceedings Against Remaindermen. —

While under this section and G.S. 46-23 there is authority for a sale for partition of the reversion at the instance of the remaindermen, or by their joining the life tenants, or between tenants in common or joint tenants, there is no statute which authorizes the sale on the application of the life tenant as against the remaindermen. Ray v. Poole, 187 N.C. 749 , 123 S.E. 5, 1924 N.C. LEXIS 391 (1924).

Life tenants are not tenants in common with remaindermen, and may not maintain partition proceedings against the tenants in common in the remainder. Richardson v. Barnes, 238 N.C. 398 , 77 S.E.2d 925, 1953 N.C. LEXIS 446 (1953).

As to propriety of partition proceedings between life tenant of one-half interest and owner of other one-half interest, allotting life estate in severalty, see First-Citizens Bank & Trust Co. v. Carr, 279 N.C. 539 , 184 S.E.2d 268, 1971 N.C. LEXIS 886 (1971).

Estate During Widowhood. —

This section did not apply to an estate durante viduitate, as there was no practicable rule by which the present value of such an estate could be determined; hence, where land to which an estate durante viduitate attached was sold for partition and the proceeds were in custody of the court below, they could not be divided among the widow and the remaindermen, against the will of the remaindermen, but would remain real estate until partition could be made at the termination of the estate durante viduitate by the widow’s remarriage or death. Gillespie v. Allison, 117 N.C. 512 , 23 S.E. 438, 1895 N.C. LEXIS 108 (1895).

§ 46A-79. Partition sale of remainder or reversionary interest of real property.

The existence of a life estate in real property does not bar a partition sale of the remainder or reversionary interest of the property, and for the purposes of partition, the tenants in common or joint tenants of the remainder or reversionary interest shall be deemed to possess the property as if no life estate existed. The partition shall not, however, interfere with the possession of the life tenant during the existence of the life tenant’s estate.

History. 1887, c. 214, s. 2; Rev., s. 2508; C.S., s. 3234; 2020-23, ss. 2(aa), 3.

Cross References.

As to sale, lease or mortgage in case of remainders, see G.S. 41-11 .

Editor’s Note.

This section is former G.S. 46-23 , as recodified by Session Laws 2020-23, s. 2(aa), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-23 or prior law.

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 N.C. LEXIS 269 (1894); Moore v. Baker, 222 N.C. 736 , 24 S.E.2d 749, 1943 N.C. LEXIS 416 (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 N.C. LEXIS 246 (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 N.C. LEXIS 1123 (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 N.C. LEXIS 14 (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 N.C. App. LEXIS 2808 (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 N.C. LEXIS 269 (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 N.C. LEXIS 118 (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 N.C. LEXIS 372 (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 N.C. LEXIS 415 (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 N.C. LEXIS 446 (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 N.C. LEXIS 359 (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 N.C. LEXIS 416 (1943). See also, Priddy & Co. v. Sanderford, 221 N.C. 422 , 20 S.E.2d 341, 1942 N.C. LEXIS 478 (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 N.C. LEXIS 114 (1892); Pendleton v. Williams, 175 N.C. 248 , 95 S.E. 500, 1918 N.C. LEXIS 48 (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 N.C. LEXIS 110 (1894).

§ 46A-80. Sale of standing timber; valuation of life estate.

  1. When two or more persons own real property with standing timber, as tenants in common, joint tenants, or partners, one or more of the persons may seek a partition sale of the timber, separate from the real property.
  2. If real property with standing timber is subject to a life estate, the life tenant or an owner of the remainder or reversionary interest, whether as a tenant in common, joint tenant, partner, or sole owner, may seek a partition sale of the timber, separate from the real property. The life tenant shall be made a party to the proceeding and is entitled to receive the life tenant’s share of the proceeds, to be calculated according to mortality tables accepted by the court.
  3. An order allowing a life tenant to sell standing timber requires a finding that the cutting of the timber is in keeping with good husbandry and that no substantial injury will be done to the remainder or reversionary interest.

History. 1895, c. 187; Rev., s. 2510; C.S., s. 3236; 1949, c. 34; 1975, c. 476, s. 1; 1997-133, s. 3; 2020-23, ss. 2(cc), 3.

Cross References.

As to mortality tables and present worth of annuities, see G.S. 8-46 and 8-47.

Editor’s Note.

This section is former G.S. 46-25 , as recodified by Session Laws 2020-23, s. 2(cc), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 1975, c. 476, which added the second proviso at the end of the section, provides in s. 2 that the act shall apply only to property acquired by deed, inheritance or will after its effective date, Oct. 1, 1975.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-25 or prior law.

This section changes the common law and permits a sale of timber for profit, by a life tenant, with the remaindermen receiving their share of the proceeds. At common law the life tenant was not permitted to sell standing timber, nor to receive benefit from it except for ordinary purposes in using the land. Piland v. Piland, 24 N.C. App. 653, 211 S.E.2d 844, 1975 N.C. App. LEXIS 2461 , cert. denied, 286 N.C. 723 , 213 S.E.2d 723, 1975 N.C. LEXIS 1283 (1975); Bridgers v. Bridgers, 56 N.C. App. 617, 289 S.E.2d 921, 1982 N.C. App. LEXIS 2489 (1982).

It gives the life tenant an advantage in timber that he does not enjoy in land. Life tenants may not maintain partition proceedings against tenants in common in the remainder. Piland v. Piland, 24 N.C. App. 653, 211 S.E.2d 844, 1975 N.C. App. LEXIS 2461 , cert. denied, 286 N.C. 723 , 213 S.E.2d 723, 1975 N.C. LEXIS 1283 (1975).

This Section Is Permissive. —

The statute authorizing partition sale of standing timber is permissive rather than mandatory. Chandler v. Cameron, 229 N.C. 62 , 47 S.E.2d 528, 1948 N.C. LEXIS 413 (1948).

The use of the word “may” obviously makes this section permissive. Piland v. Piland, 24 N.C. App. 653, 211 S.E.2d 844, 1975 N.C. App. LEXIS 2461 , cert. denied, 286 N.C. 723 , 213 S.E.2d 723, 1975 N.C. LEXIS 1283 (1975).

Applicability. —

This section is not limited in application to only those tracts of land in which interests are subject to a life estate. When this section speaks of tenants in common “either in possession, or in remainder or reversion, subject to a life estate,” the phrase “subject to a life estate” modifies only the words “remainder” and “reversion.” Tenants in common who presently possess a tract of land may also petition for a sale of timber. Bridgers v. Bridgers, 56 N.C. App. 617, 289 S.E.2d 921, 1982 N.C. App. LEXIS 2489 (1982).

Cotenants Need Not Have Same Type of Interest. —

This section does not require all cotenants to have the same type of interest in the land. A cotenant in remainder may petition for a sale of standing timber from land in which the other cotenant has a present possessory interest. Bridgers v. Bridgers, 56 N.C. App. 617, 289 S.E.2d 921, 1982 N.C. App. LEXIS 2489 (1982).

Showing of Impossibility of Land Partition Is Not Necessary. —

Tenants in remainder are not required to show under this section that an equitable partition of land tracts is not possible before the court may authorize a sale of the timber apart from the realty. Bridgers v. Bridgers, 56 N.C. App. 617, 289 S.E.2d 921, 1982 N.C. App. LEXIS 2489 (1982).

Discretion of Court. —

Under this section, the court has the power in its discretion to order a sale of timber upon the life tenant’s petition. Piland v. Piland, 24 N.C. App. 653, 211 S.E.2d 844, 1975 N.C. App. LEXIS 2461 , cert. denied, 286 N.C. 723 , 213 S.E.2d 723, 1975 N.C. LEXIS 1283 (1975).

Prior to the 1975 amendment, this section did not require findings as to necessity and advisability of a sale. Piland v. Piland, 24 N.C. App. 653, 211 S.E.2d 844, 1975 N.C. App. LEXIS 2461 , cert. denied, 286 N.C. 723 , 213 S.E.2d 723, 1975 N.C. LEXIS 1283 (1975).

Provision in Judgment Requiring Actual Partition of Timber. —

Where a tenant in common, without the knowledge or authorization of his cotenants, contracted to sell the timber on the entire tract, and thereafter he joined his cotenants in a timber deed to another person, in an action brought by the grantee in the deed against the vendee in the contract to sell, a provision in the judgment that if the vendee elected to purchase the timber covered by the contract, there should be actual partition of the timber between the vendee and the grantee, would be upheld. Chandler v. Cameron, 229 N.C. 62 , 47 S.E.2d 528, 1948 N.C. LEXIS 413 (1948).

§ 46A-81. Sale of oil, gas, or mineral interests.

In a partition of oil, gas, or mineral interests of real property, when the court determines any of the following, the court shall order a sale of the oil, gas, or mineral interests and allocate the proceeds according to the interests of the tenants in common or joint tenants:

  1. It is in the best interest of the cotenants of the oil, gas, or mineral interests to sell the interests.
  2. Actual partition of the oil, gas, or mineral interests would cause injury to some or all of the cotenants of the oil, gas, or mineral interests.

History. 1905, c. 90, s. 2; Rev., s. 2507; C.S., s. 3237; 2020-23, ss. 2(dd), 3.

Editor’s Note.

This section is former G.S. 46-26 , as recodified by Session Laws 2020-23, s. 2(dd), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case note for this section was decided under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1982 law on property, see 61 N.C.L. Rev. 1171 (1983).

CASE NOTES

Editor’s Note. —

The case note below was decided under former G.S. 46-26 or prior law.

The mere conclusion of the court that the mineral interest is incapable of actual division, unsupported by allegation, proof, or finding, will not support a decree of sale for partition. Carolina Mineral Co. v. Young, 220 N.C. 287 , 17 S.E.2d 119, 1941 N.C. LEXIS 525 (1941).

§ 46A-82. Sale of real property required for public purposes on cotenant’s petition.

When the real property of tenants in common or joint tenants is required for public purposes, one or more cotenants, or the cotenant’s guardian of the estate or general guardian, may file a petition verified by oath in the superior court of the county where the property or any part of the property is located, setting forth in the petition that the property is required for public purposes and that the cotenants’ interests would be promoted by a sale of the property. If all necessary parties are before the court and the court finds the facts alleged in the petition to be true, the court shall order a sale of the property, or as much of it as may be necessary. Attorneys’ fees shall be assessed in accordance with G.S. 46A-3 . Mediator fees and costs of mediation shall be assessed in accordance with G.S. 7A-38.3 B. Other costs and expenses shall be assessed in accordance with G.S. 6-21 .

History. 1868-9, c. 122, s. 16; Code, s. 1907; Rev., s. 2518; C.S., s. 3238; 1949, c. 719, s. 2; 2005-67, s. 4; 2020-23, ss. 2(ee), 3.

Editor’s Note.

This section is former G.S. 46-27 , as recodified by Session Laws 2020-23, s. 2(ee), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

This section, as amended by Session Laws 2005-67, s. 4, effective May 26, 2005, is applicable to all matters pending before a clerk or superior court on, or filed with the clerk after, the date the Supreme Court adopted rules implementing Session Laws 2005-67. The Rules Implementing Mediation in Matters Before the Clerk of Superior Court were adopted January 26, 2006.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

§ 46A-83. Petition for revocation of confirmation order.

  1. Grounds for Revocation. —  Notwithstanding G.S. 46A-76 or any other provision of law, within 15 days of entry of the order confirming the partition sale of real property, the purchaser or any party to the partition proceeding may petition the court to revoke its order of confirmation and to order the withdrawal of the purchaser’s offer to purchase the property upon the following grounds:
    1. In the case of a purchaser, a lien remains unsatisfied on the property to be conveyed.
    2. In the case of any party to the partition proceeding, any of the following:
      1. Notice of the partition was not served on the petitioner for revocation as required by G.S. 1A-1 , Rule 4.
      2. Notice of the sale was not mailed to the petitioner for revocation as required by G.S. 46A-76 (d).
      3. The amount bid or price offered is inadequate and inequitable and will result in irreparable damage to the owners of the real property. In no event shall the confirmation order become final during the pendency of a petition under this section. No upset bid shall be permitted after the entry of the confirmation order.
  2. Effect of Notice. —  A petitioner for revocation shall not prevail under sub-subdivision (a)(2)a. or b. of this section, if the petitioner was mailed notice of the sale in accordance with G.S. 46A-76(d).
  3. Service; Notice of Hearing. —  The party petitioning for revocation shall serve all parties required to be served under G.S. 1A-1 , Rule 5, and shall serve the officer or person designated to make the sale under G.S. 1A-1 , Rule 4(j). The court shall schedule a hearing on the petition within a reasonable time and shall cause a notice of the hearing to be served on the petitioner, the officer or person designated to make the sale, and all parties required to be served under G.S. 1A-1, Rule 5.
  4. Petition by Purchaser. —  In the case of a petition brought under this section by a purchaser claiming the existence of an unsatisfied lien on the property to be conveyed, if the purchaser proves by a preponderance of the evidence all of the following, the court may revoke the order confirming the sale, order the withdrawal of the purchaser’s offer, and order the return of any money or security to the purchaser tendered pursuant to the offer:
    1. A lien remains unsatisfied on the property to be conveyed.
    2. The purchaser has not agreed in writing to assume the lien.
    3. The lien will not be satisfied out of the proceeds of the sale.
    4. The existence of the lien was not disclosed in the notice of sale of the property.The order of the court in revoking an order of confirmation under this section shall not be introduced in any other proceeding to establish or deny the existence of a lien.
  5. Petition by Party. —  In the case of a petition brought pursuant to this section by a party to the partition proceeding, if the court finds by a preponderance of the evidence that the petitioner has proven a case pursuant to sub-subdivision (a)(2)a., b., or c. of this section, the court may revoke the order confirming the sale, order the withdrawal of the purchaser’s offer, and order the return of any money or security to the purchaser tendered pursuant to the offer.
  6. Resale. —  If the court revokes its order of confirmation under this section, the court shall order a resale. The procedure for a resale is as provided under G.S. 46A-76 .

History. 1977, c. 833, s. 1; 1985, c. 626, ss. 3-7; 2001-271, s. 19; 2009-362, s. 4; 2009-512, s. 5; 2020-23, ss. 2(hh), 3; 2021-91, s. 2(c).

Editor’s Note.

Subsections (a), (c), (d), (e), and (f) of this section are former G.S. 46-28.1(a), (b), (c), (d), and (e), as recodified by Session Laws 2020-23, s. 2(hh), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Session Laws 2021-91, s. 2(d), made the substitution of “shall serve all parties” for “shall deliver a copy of the petition to all parties” near the beginning of subsection (c) of this section by Session Laws 2021-91, s. 2(c), effective July 22, 2021, and applicable to actions or proceedings pending on or commenced on or after that date.

Effect of Amendments.

Session Laws 2009-362, s. 4, effective October 1, 2009, in subsection (a), in the introductory language, substituted “within 15 days of entry of the order confirming the partition sale or real property” for “an order confirming the partition sale of real property shall not become final and effective until 15 days after entered. At any time before the confirmation order becomes final and effective”; and added subsection (f).

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Session Laws 2021-91, s. 2(c), substituted “shall serve all parties” for “shall deliver a copy of the petition to all parties” near the beginning of subsection (c). For effective date and applicability, see editor’s note.

§ 46A-84. Petition for revocation based on inadequate price.

In the case of a petition brought pursuant to G.S. 46A-83(a)(2)c., and when an independent appraisal of the property being sold has not been previously entered into evidence in the action, and upon the request of any party, the court may order an independent appraisal prepared by a real estate appraiser currently licensed by the North Carolina Appraisal Board and prepared in accordance with the Uniform Standards of Professional Appraisal Practice. The cost of an independent appraisal shall be borne by one or more of the parties requesting the appraisal in such proportions as determined by the court. Before ruling on the petition brought pursuant to G.S. 46A-83(a)(2)c., the court may in its discretion require written evidence from the appraiser that the appraiser has been paid in full for the appraisal. If based on the appraisal and all of the evidence presented, the court finds the amount bid or price offered to be inadequate, inequitable, and resulting in irreparable damage to the owners, the court may revoke the order confirming the sale, order the withdrawal of the purchaser’s high bid or offer, and order the return to the purchaser of any money or security tendered by the purchaser pursuant to the high bid or offer.

History. 1977, c. 833, s. 1; 1985, c. 626, ss. 3-7; 2001-271, s. 19; 2009-362, s. 4; 2009-512, s. 5; 2020-23, ss. 2(ii), 3.

Editor’s Note.

This section is former G.S. 46-28(d1), as recodified by Session Laws 2020-23, s. 2(ii), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2009-362, s. 4, effective October 1, 2009, in subsection (a), in the introductory language, substituted “within 15 days of entry of the order confirming the partition sale or real property” for “an order confirming the partition sale of real property shall not become final and effective until 15 days after entered. At any time before the confirmation order becomes final and effective”; and added subsection (f).

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

§§ 46A-84.1 through 46A-84.4.

Reserved for future codification purposes.

§ 46A-84.5. Petition for revocation based on default bid.

If a purchaser in a partition sale defaults on the purchaser’s bid, any party to the partition proceeding or the officer or person designated to make the sale may at any time petition the court to revoke its order confirming the partition sale. The petitioner for revocation shall serve all parties required to be served under G.S. 1A-1 , Rule 5, and, if the purchaser is not a party, serve the purchaser under G.S. 1A-1 , Rule 4(j). If the court finds that the purchaser defaulted on the purchaser’s bid and is unable to cure the default, the court shall revoke its order of confirmation and order a resale.

History. 2021-91, s. 2(b).

Editor’s Note.

Session Laws 2021-91, s. 2(d), made this section, as added by Session Laws 2021-91, s. 2(b), effective July 22, 2021, and applicable to actions or proceedings pending on or commenced on or after that date.

§ 46A-85. Order becoming final; appeal; purchase of property.

  1. Order Becoming Final; Appeal. —  An order confirming the partition sale of real property becomes final 15 days after entry of the order of confirmation or when the clerk denies a petition for revocation, whichever occurs later. A party may appeal an order confirming the partition sale of real property within 10 days of the order becoming final.
  2. Purchase of Property. —  After the order of confirmation becomes final, the successful bidder may immediately purchase the property.
  3. Effect of Deed. —  The deed of the officer or person designated to make the sale shall convey to the purchaser such title and estate in the property as the cotenants and all other parties to the proceeding had in the property.
  4. Sale Proceeds. —  Upon receipt of the sale proceeds by either the court or the commissioner, the court shall secure to each cotenant the cotenant’s ratable share in severalty of the proceeds of sale. If the ratable share due to each cotenant has not yet been determined by the court, the court shall set the matter for hearing on the court’s own motion or upon motion of a party or commissioner.

History. 1868-9, c. 122, ss. 13, 31; Code, ss. 1904, 1921; Rev., ss. 2512, 2513; C.S., ss. 3241, 3244; 1949, c. 719, s. 2; 1977, c. 833, ss. 1-3; 1985, c. 626, ss. 3-8; 2001-271, s. 19; 2009-362, s. 4; 2009-512, s. 5; 2020-23, ss. 2(jj)-(ll), (nn), 3.

Editor’s Note.

This section is former G.S. 46-28.1(f), former G.S. 46-28.2 , former G.S. 46-30 , and former G.S. 46-33 , as recodified by Session Laws 2020-23, s. 2(jj), (kk), ( ll ), and (nn), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes and Attorney General opinions for this section include decisions under former sections.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2009-362, s. 4, effective October 1, 2009, in subsection (a), in the introductory language, substituted “within 15 days of entry of the order confirming the partition sale or real property” for “an order confirming the partition sale of real property shall not become final and effective until 15 days after entered. At any time before the confirmation order becomes final and effective”; and added subsection (f).

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-30 and 46-31 or prior law.

Application by Judgment Creditors for Share of Proceeds. —

Since they are not affected by the partition sale, judgment creditors, who are not parties to the partition proceeding, have no right to apply to the court after final decree to have their debtor’s share of the proceeds paid to them. Moreover, they cannot be permitted to intervene for such purpose after the officer or person making the partition sale has put an end to the proceeding by disposing of the proceeds of sale in conformity with the final decree. Washburn v. Washburn, 234 N.C. 370 , 67 S.E.2d 264, 1951 N.C. LEXIS 463 (1951).

Subjection of Purchased Property to Liens. —

The purchaser at a judicial sale takes the property subject to whatever liens and encumbrances exist thereon, and cannot have the proceeds of sale applied to discharge such liens. Jordan v. Faulkner, 168 N.C. 466 , 84 S.E. 764, 1915 N.C. LEXIS 84 (1915).

Where judgment creditors of a tenant in common are not made parties to a partition proceeding, the purchaser buys subject to their liens. Holley v. White, 172 N.C. 77 , 89 S.E. 1061, 1916 N.C. LEXIS 233 (1916). See also, Washburn v. Washburn, 234 N.C. 370 , 67 S.E.2d 264, 1951 N.C. LEXIS 463 (1951).

OPINIONS OF ATTORNEY GENERAL

Power of Superior Court Clerk to Authorize Commissioners to Impose Restrictive Covenants. — Clerk of superior court may not authorize commissioners in proceeding to partition land among tenants in common to impose legally binding restrictive covenants when there are no restrictions prior to partition and some of the cotenants do not consent to the imposition of such covenants. See opinion of Attorney General to Honorable M.L. Huggins, 42 N.C. Op. Att'y Gen. 1 (1972).

§ 46A-86. Sale proceeds belonging to certain parties.

  1. Minor; Incompetent Adult. —  When real property is sold under this Chapter and a party to the proceeding is a minor or an incompetent adult, the court shall take appropriate steps to secure the proceeds for the benefit of the party, including any of the following:
    1. For proceeds up to the allowable amounts in G.S. 7A-111 , receive, administer, and disburse the proceeds pursuant to that section.
    2. Order the proceeds disbursed to any of the following:
      1. A guardian of the estate or general guardian under Chapter 35A of the General Statutes.
      2. An agent under Chapter 32C of the General Statutes.
      3. In the case of a minor, a custodian under Chapter 33A of the General Statutes.
      4. A custodial trust under Chapter 33B of the General Statutes.
      5. A trust under Chapter 36C of the General Statutes.
  2. Certain Other Parties. —  When a sale is made under this Chapter, the court shall invest or deposit under G.S. 7A-112 and G.S. 7A-112.1 proceeds belonging to the following parties:
    1. A party who is imprisoned, if the proceeds cannot be disbursed to, or at the direction of, the party.
    2. An unknown or unlocatable cotenant.A party may seek disbursement of these proceeds by filing a motion in the proceeding. If the party shows that the proceeds belong to the party, the court shall order that the proceeds be disbursed to the party.

History. 1868-9, c. 122, s. 17; Code, s. 1908; 1887, c. 284, s. 3; Rev., s. 2516; C.S., s. 3245; 2020-23, ss. 2(oo), 3.

Editor’s Note.

This section is former G.S. 46-34 , as recodified by Session Laws 2020-23, s. 2(oo), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-34 or prior law.

This section does not interfere with the power to free the title and make a valid conveyance of the same. Bynum v. Bynum, 179 N.C. 14 , 101 S.E. 527, 1919 N.C. LEXIS 6 (1919).

Title of Purchaser Without Notice Is Not Affected by Court’s Failure to Invest. —

A purchaser for full value, without notice, of lands at a sale for partition thereof by the heirs at law acquires a title which is not affected by the failure of the court to retain and invest funds sufficient to protect the rights of such unknown persons, served with summons by publication, who may afterwards appear and establish an interest in the lands. Lawrence v. Hardy, 151 N.C. 123 , 65 S.E. 766, 1909 N.C. LEXIS 210 (1909).

Consent of Court Necessary to Agreement. —

Parties cannot stipulate as to distribution of the proceeds of a judicial sale without the full knowledge and consent of the court, especially where there are infants in the case whose rights may be seriously prejudiced by such an agreement. Lyman v. Southern Coal Co., 183 N.C. 581 , 112 S.E. 242, 1922 N.C. LEXIS 320 (1922).

Infant’s Share of Proceeds Remains Realty. —

The proceeds of land, sold for partition, to which an infant is entitled, remain real estate until such infant comes of age and elects to take them as money. Bateman v. Latham, 56 N.C. 35 , 1856 N.C. LEXIS 218 (1856).

Payment to Guardian. —

A payment made by a purchaser of lands, under a decree for sale and partition which directed the proceeds to be paid over to the parties according to law, to the guardian of one of the tenants in common is proper and in pursuance of the statute. Howerton v. Sexton, 104 N.C. 75 , 10 S.E. 148, 1889 N.C. LEXIS 153 (1889).

§§ 46A-87 through 46A-99.

Reserved for future codification purposes.

Article 3. Partition of Personal Property.

§ 46A-100. Personal property may be partitioned.

A tenant in common or joint tenant of personal property may file a petition in superior court to partition the property.

History. 1868-9, c. 122, s. 27; Code, s. 1917; Rev., s. 2504; C.S., s. 3253; 2020-23, ss. 2(pp), 3.

Editor’s Note.

This section is former G.S. 46-42 , as recodified by Session Laws 2020-23, s. 2(pp), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For article on joint ownership of corporate securities in North Carolina, see 44 N.C.L. Rev. 290 (1966).

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-42 or prior law.

The appropriate procedure for a tenant in common seeking a division of personal property is to file a petition in the superior court for that purpose pursuant to this section. Parslow v. Parslow, 47 N.C. App. 84, 266 S.E.2d 746, 1980 N.C. App. LEXIS 2978 (1980).

Exclusiveness of Remedy. —

A petition for the partition of personal property is the only remedy one tenant in common has against another for withholding possession. Powell v. Hill, 64 N.C. 169 , 1870 N.C. LEXIS 55 (1870); Grim v. Wicker, 80 N.C. 343 , 1879 N.C. LEXIS 89 (1879).

One tenant in common or joint owner of personal property cannot maintain an action against the other tenant or owner to recover the exclusive possession of the property when the defendant forcibly took it from the plaintiff’s possession; the plaintiff’s only remedy is to have the property partitioned. Thompson v. Silverthorne, 142 N.C. 12 , 54 S.E. 782, 1906 N.C. LEXIS 207 (1906).

Injunction or Receiver. —

Where, pending a suit for partition of personal property, the defendant threatens the destruction or removal of the property, the court, on the plaintiff’s application, may grant an injunction or appoint a receiver. Thompson v. Silverthorne, 142 N.C. 12 , 54 S.E. 782, 1906 N.C. LEXIS 207 (1906).

Title to Personalty. —

In petitions for the partition of personal property owned in common, where the defendant sets up title in severalty in himself, the title to the property may be tried on the petition. Edwards v. Bennett, 32 N.C. 361 , 1849 N.C. LEXIS 126 (1849).

Venue. —

A proceeding for the partition of personal property is the sole remedy of a tenant in common to obtain possession as against a cotenant, and therefore it is governed by the provisions of G.S. 1-76(4) , making the venue the county in which the property sought to be partitioned is located, and not the county of the residence of the petitioner or respondent. Dubose v. Harpe, 239 N.C. 672 , 80 S.E.2d 454, 1954 N.C. LEXIS 604 (1954).

Notes. —

The owners of notes, as tenants in common, are entitled to partition. Central Bank & Trust Co. v. Board of Comm'rs, 195 N.C. 678 , 143 S.E. 252, 1928 N.C. LEXIS 181 (1928).

§ 46A-101. Commissioners appointed; filing and service of report; confirmation; motion for relief.

  1. Appointment. —  If the court determines that the petitioner is entitled to relief, the court shall appoint three disinterested commissioners, who, being first duly sworn, shall proceed within 20 days after notice of their appointment to partition the personal property in shares that are as nearly proportionate in value as possible to the interests of the cotenants.
  2. Report. —  The commissioners shall file a written report of their proceedings in the court, signed by any two of them, within five days after the actual partition. At the time of filing, the commissioners shall serve a copy of the report on all the parties.
  3. Confirmation. —  If no party files an exception to the commissioners’ report within 10 days of service of the report on all the parties, the court shall confirm the report.
  4. Motion for Relief. —  After confirmation of the report, any party may seek relief from the order of confirmation for mistake, fraud, or collusion by a motion in the proceeding. This relief, however, shall not affect an innocent purchaser for value and without notice.

History. 1868-9, c. 122, s. 28; Code, s. 1918; Rev., s. 2505; C.S., s. 3254; 1953. c. 24; 2020-23, ss. 2(qq), (rr), 3.

Editor’s Note.

Subsection (b) of this section is former G.S. 46-43 , and subsection (c) of this section is former G.S. 46-43.1 , as recodified by Session Laws 2020-23, s. 2(qq) and (rr), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former sections have been added to this section as recodified.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For brief comment on this section, see 31 N.C.L. Rev. 428 (1953).

§ 46A-102. Partition sale of personal property.

  1. If the court determines that an actual partition of personal property would injure some of the parties and that a partition sale is necessary, the court shall order a sale to be made as provided in Article 29A of Chapter 1 of the General Statutes. In a partition sale, the court is not required to appoint more than one commissioner.
  2. G.S. 46A-86 applies to sale proceeds under this section.

History. 1868-9, c. 122, s. 29; Code, s. 1919; Rev., s. 2519; C.S., s. 3255; 1949, c. 719, s. 2; 2020-23, ss. 2(ss), 3.

Editor’s Note.

This section is former G.S. 46-44 , as recodified by Session Laws 2020-23, s. 2(ss), effective October 1, 2020, and applicable to partition proceedings commenced on or after that date. The historical citation from the former section has been added to this section as recodified. The case notes for this section include decisions under the former section.

Session Laws 2020-23, s. 18, made the rewriting of this section by Session Laws 2020-23, s. 3, effective October 1, 2020, and applicable to partition proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2020-23, s. 3 rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Most of the case notes below were decided under former G.S. 46-44 or prior law.

Applicability. —

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 N.C. App. LEXIS 609 (2014).

Selling one-half interest in personal property. —

Evidence showed that a division of personal property owned by the parties as tenants in common could not be had without injury to some of the parties interested, given that the evidence showed the obstacles petitioner faced in selling the petitioner’s one-half interest in the leasehold, mobile home, and other personal property, and the petitioner would suffer injury by either being unable to sell or having to accept a drastically reduced price to attract a buyer who wanted to share a one-half interest with respondent. Whitesell v. Barnwell, 234 N.C. App. 471, 758 S.E.2d 898, 2014 N.C. App. LEXIS 609 (2014).