Walston v. Morgan, 217 N.C. 790 (1940)

Feb. 28, 1940 · Supreme Court of North Carolina

217 N.C. 790

WINNIE WOOD WALSTON et al. v. SUSAN MORGAN et al.

(Filed 28 February, 1940.)

Appeal by plaintiffs from Nimochs, J., at November Term, 1939, of PASQUOTANK.

Petition for partition.

Petitioners and respondents are owners of a tract of land in Pasquo-tank County containing approximately 78 acres. Those owning % in interest prayed for actual partition of 56 acres and a sale of the remaining 22 acres. The owners of % in interest alleged that partial partition under C. S., 3227, could not be had without substantial loss and prayed for a sale of the whole tract.

Upon facts found by the court favorable to the view of those holding the minority interest the entire tract was ordered to be sold for partition, it being recited in the judgment that “upon the foregoing, the court being of the opinion that a sale of said lands is proper and necessary, and that, as a matter of law, the court is without right to order a parti-tition according to either of the modes or methods proposed and requested by the petitioners.” From this order the petitioners appeal.

R. Clarence Dozier for plaintiffs and certain respondents, appellants.

McMullan & McMullan for appellees.

Per Curiam.

Tbe judge of tbe Superior Court concluded tbat a sale of tbe entire tract was necessary and proper on tbe facts found and set out in tbe record. What bas occasioned tbe appeal is tbe further statement in tbe judgment tbat tbe court was without right, as a matter of law, to order actual partition in part and sale in part. This, however, is predicated “upon tbe foregoing” and tbe court’s opinion based thereon tbat a sale of tbe whole tract was “proper and necessary.” As thus understood, it would seem tbat only a discretionary order is presented for review. Taylor v. Carrow, 156 N. C., 6, 72 S. E., 76.

Affirmed.