Nicelar v. Heirs of Barbrick, 18 N.C. 257, 1 Dev. & Bat. 257 (1835)

June 1835 · Supreme Court of North Carolina

18 N.C. 257, 1 Dev. & Bat. 257

NICHOLAS NICELAR v. The Heirs of LEONARD BARBRICK.

The report of commissioners, appointed to divide the lands of intestates, under the acts of 1787 and 1801, (Rev. eh. 274 and ,588) will be presumed to be correct, and be confirmed, although one dividend of land be nearly double, and another not half of the average value of the shares, unless something improper appears on the face of the return, or is shown by extrinsic proofs.

This was a petition for partition.

The heirs at law of Leonard Barbrick, filed a petition for partition of the lands of their deceased ancestor, in the County Court of Cabarrus ; an order was made for the appointment of commissioners, and the commissioners made return of their proceedings to the Court. It appeared upon that return, that they had allotted to Catharine Stirewalt, one of the heirs, and wife of Adam Stirewalt, by metes and bounds, a piece of land containing two hundred and twenty-one acres, valued at eleven hundred dollars; to Polly West, another of the heirs, the wife of Isaac West, an adjoining piece of land, by metes and bounds containing two hundred and twenty-six acres, and valued at three hundred and ninety-five dollars; to Margaret Earnhart, another heir, the wife of Peter Earnhart, an adjoining piece, by metes and bounds containing two hundred and fifty-seven acres, and valued at five hundred and fourteen dollars; and to Elizabeth, the wife of Nicholas Nicelar, the other heir, a piece by metes and bounds containing two hundred and eighty-four acres, and valued at one thousand eight hundred dollars; and for equality of partition they charged the share of Elizabeth Nicelar, with the sum of eight hundred and forty-seven dollars and seventy-five cents; that is to say, with four hundred and thirty-eight dollars and twenty-five cents, payable to Margaret Earnhart, and four hundred and nine dollars and fifty cents, to Polly West; and the share of Catharine Stirewalt, with the sum of one hundred and forty-seven dollars and seventy-five cents, payable to Polly West. The County Court confirmed this report and ordered the same to be recorded, from which judgment Nicholas Nicelar appealed to the Superior Court. In that Court, on the last Circuit at Cabarrus, before his honor Judge Settle, it was objected by the appellant, that the report ought not to be confirmed, because of the inequality in the partition appearing on the face of the report; but this objection was overruled, and “ the report confirmed,” from which judgment he appealed.

No counsel appeared for either party.

Gaston, Judge,

after stating the case as above, proceeded. — The acts of 1787 and 1801, [Rev. ch. 274 and 588,) requires that the commissioners shall apportion the lands into as equal shares as possible, by a subdivison, if necessary, of the more valuable tract or tracts; and au-thorise an unequal partition of the lands, and correcting the inequality by charges of money on the more valuable dividends, only, where an equal division of the lands cannot be made without injury to the heirs. These requirements are to be strictly observed by the commissioners, and . very departure from them ought to be corrected wherever it is perceived. A disregard of .them, compels some of the parties to become sellers, and others purchasers, without their consent, and, especially in the cases of femes covert and infants, may be productive of very injurious results. The inequality in the value of the different tracts in this case, is very striking. The average value of a share is nine hundred and fifty-two dollars and twenty-five cents, and to one of the parties is allotted land of almost doable this average value, and to another, land less than half this value; nor are any special circumstances stated, which rendered it impracticable to make a more equal division without injury to the heirs. Nevertheless it appears to us, that so much respect is due to the report of the commissioners, selected for, and sworn to, the performance of this special duty, as to warrant the presumption that their doings have been correct, where the contrary does not appear upon the face of their return, or is shown by extrinsic proofs. It may be, that a more equal division of the lands could not have been made without injury to the parties; and therefore the partition cannot be pronounced wrong upon its face. No extrinsic .proofs were offered to contradict the presumption of correctness. This Court therefore, cannot say, that the Superior Court erred in overruling the only objection made to the report, and in confirming the same.

We have had some doubt whether the judgment below is to be regarded as a final one or not. From the great indulgence which has been shown in this state to informal' entries, possibly this might be supported as such. We do not, however, consider ourselves bound to treat it as a final judgment, and we think, had a final judgment been designed, the return and appropriation would have been directed tobe recorded, (or enrolled,) and a disposition made of the costs of the appeal. Viewing the judgment as interlocutory only, from which an appeal has been permitted under the act of 1831, c. 34, we shall direct this opinion to be certified to the Superior Court of Cabarrus; and there is to be a judgment here against the appellant for the costs of this appeal.

Pee Curiam. Judgment accordingly.