Hyman v. Edwards, 217 N.C. 342 (1940)

March 27, 1940 · Supreme Court of North Carolina

217 N.C. 342

ESSIE E. HYMAN and Husband, AARON HYMAN, v. NATHAN A. EDWARDS and Wife, EMMA R. EDWARDS; LILLIE E. COHEN (Widow); F. B. DANIELS, Trustee; and THE BANK OF WAYNE, Trustee in the Life Insurance Trust of GEORGE K. FREEMAN, Deceased.

(Filed 27 March, 1940.)

1. Partition § 4: Courts § 3 — In proceedings for actual partition all orders are interlocutory until the decree of confirmation.

In a proceeding for partition in which actual partition is ordered, all orders are interlocutory until the decree of confirmation, and upon the hearing on the report of the commissioners, the clerk may confirm the report or set the same aside and order a sale, and the judge, on appeal, may reverse, modify or confirm the clerk’s judgment or set aside the report and order a sale, even though another Superior Court judge had theretofore affirmed the clerk’s order for actual partition, since the former order, being interlocutory, is not res juMcata and is subject to be set aside or modified.

2. Same: Partition § 1: Appeal and Error § 2—

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, C. S., 8233, 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.

3. Appeal and Error § 2—

An order of the judge entered upon appeal from the clerk affirming the order of the clerk decreeing actual partition is an interlocutory order and is binding on the Supreme Court unless an error of law has been committed, and an appeal therefrom will be dismissed as premature.

Appeal by petitioners from Williams, J., at October Term, 1939, of WayNe.

Appeal dismissed.

Special proceeding to sell land for division in which the defendant Edwards, answering, alleged that the land was susceptible of actual partition and prayed that his interest be set apart for him in severalty.

When the petition came on to be heard before the clerk of the Superior Court of Wayne County the clerk found as a fact that the property described in the petition can be partitioned without injury to any of the parties interested. He thereupon entered his order directing an actual partition and appointing commissioners to make the division. The petitioners excepted and appealed.

When the appeal came on to be heard before the judge evidence was offered by the plaintiffs and the defendants. After hearing the evidence and after viewing the premises the judge below affirmed the order of the clerk by entering his order finding as a fact “that the property as such can be partitioned without injury to the parties owning an interest therein” and decreeing an actual partition. The cause was then remanded to the clerk for further proceedings. The petitioners excepted and appealed to this Court.

Boyall, Oosney & Smith and M. Jacob Marhmann for plaintiffs, appellants.

J. Faison Thomson and Walter T. Britt for defendants, appellees.

Barnhill, J.

The defendants, other than Nathan A. Edwards and wife and Lillie E. Cohen, are joined as parties defendant by reason of their interest as lienors. The plaintiffs own a one-fourth interest in the property which consists of four brick buildings in the town of Goldsboro and the defendant Nathan A. Edwards now owns a three-fourths interest, he having purchased the interest of the defendant Lillie E. Cohen since the institution of the proceeding.

The defendants, contending that the order of 'Williams, J., was interlocutory from which no appeal lies, moved to dismiss the appeal as being premature.

All orders in a proceeding for the partition of land other than the decree of confirmation are interlocutory. Navigation Co. v. Worrell, 133 N. C., 93; Telegraph Co. v. R. R., 83 N. C., 420; Hendrick v. R. R., 98 N. C., 431; Crocker v. Vann, 192 N. C., 422, 135 S. E., 127.

Until the confirmation of the report in a special proceeding for partition the whole matter rests in the judgment of the clerk, subject to review by the judge, whose action is binding on us unless an error of law has been committed. Taylor v. Carrow, 156 N. C., 6, 72 S. E., 76. An order appointing commissioners is preliminary and interlocutory and the judgment of the judge affirming the clerk in ordering actual partition is not res judicata and is not appealable. Navigation Co. v. Worrell, supra; Telegraph Co. v. R. R., supra; Hendrick v. R. R., supra.

It is the decree of confirmation which is the final judgment. Navigation Co. v. Worrell, supra; Taylor v. Carrow, supra; Crocker v. Vann, supra.

The clerk may, upon the hearing on the report of the commissioners, confirm the report or set the same aside and order a sale. His judgment on appeal may be reviewed by the judge and reversed, modified or confirmed and the judge has the authority to set aside the report and order a sale. Taylor v. Carrow, supra. It makes no difference that the appeals may go up to different judges. The appeals are all from the clerk to tbe judge of tbe Superior Court. Tbe former judgments of tbe judge, being interlocutory, are subject to be set aside or modified by bim or bis successors. Taylor v. Carrow, supra.

• Being better advised by tbe report of tbe commissioners tbe clerk, upon tbe motion for confirmation, or tbe judge on appeal, may find tbat tbe former order directing actual partition was impracticable and tbat a sale is essential to do justice between tbe parties. When tbe court bas tbe information coming from disinterested commissioners appointed by tbe court it then, perhaps, can form a more satisfactory opinion as to tbe rights of tbe parties. Taylor v. Carrow, supra.

Likewise, it may be tbat upon tbe report of tbe commissioners appointed to make an actual partition tbe plaintiffs will be content with tbe allotment made. In any event, they should now note their exception and then challenge tbe inequity of tbe division made by exceptions to tbe report of tbe commissioners. Then tbe whole matter may come up on appeal from tbe final order, should tbe plaintiffs be dissatisfied therewith.

It is well to note tbat there is a distinction between orders directing an actual partition and orders directing a sale for partition.

A tenant in common is entitled, as a matter of right, to partition of tbe land held in common to tbe end tbat be may have and enjoy bis share therein in severalty unless it is made to appear by satisfactory proof tbat an actual partition of tbe land cannot be made without injury to some or all of tbe parties interested. C. S., 3233; Windley v. Barrow, 55 N. C., 66; Holmes v. Holmes, 55 N. C., 334; Haddock v. Stocks, 167 N. C., 70, 83 S. E., 9; Foster v. Williams, 182 N. C., 632, 109 S. E., 834; Barber v. Barber, 195 N. C., 711, 143 S. E., 469; Talley v. Murchison, 212 N. C., 205, 193 S. E., 148. Consequently, a decree denying tbe right to actual partition and ordering a sale affects a substantial right which is not again presented to tbe court for review by exceptions to tbe report of tbe commissioner appointed to make sale. This Court will entertain appeals therefrom. Talley v. Murchison, supra; Trust Co. v. Watkins, 215 N. C., 292, 1 S. E. (2d), 853; Windley v. Barrow, supra; Trull v. Rice, 85 N. C., 327; Barber v. Barber, supra.

Tbe motion of tbe appellees to dismiss tbe appeal for tbat it is premature must be sustained.

Appeal dismissed.