Henson v. Henson, 236 N.C. 429 (1952)

Nov. 5, 1952 · Supreme Court of North Carolina

236 N.C. 429

WILLIAM M. HENSON v. ESTELLE JONES HENSON.

(Filed 5 November, 1952.)

Partition § 4a—

In a suit for partition, a tenant in common may assert in ber pleading that she has paid off an encumbrance on the property and ask that she be reimbursed for such sum in the adjustment of the rights of the parties, since the proceeding is equitable in nature and the court has jurisdiction to adjust all equities in respect to the property.

Appeal by plaintiff from Sharp, Special Judge, June Term, 1952, of RaNdolph.

Affirmed.

Petition for sale of real property for partition.

Tbe plaintiff and defendant, wbo were then husband and wife, obtained title to property, a bouse and lot, as tenants by tbe entireties. Since divorced, tbeir relationship to tbe property bas become that of tenants in common. Tbe plaintiff now brings this proceeding to have tbe property (incapable of actual partition) sold for division.

Tbe defendant filed an answer admitting these facts, but alleged (1) that she was entitled to support for tbe minor children of tbe marriage, and (2) that plaintiff and defendant during coverture bad executed a mortgage on tbe property, and that defendant has paid tbis mortgage in whole or in part. Demurrer to tbe answer was sustained as to tbe claim for support of minor children. Defendant’s appeal from tbis judgment was dismissed, and defendant allowed to file amended answer. Defendant’s amended answer sets out that defendant bas paid $2,500 on tbe mortgage on tbe property, and asks that she be reimbursed that sum in tbe adjustment of tbe rights of tbe parties.

Demurrer to tbe amended answer was overruled and plaintiff appealed.

OUway Burton for plaintiff, appellant.

P. W. Glidewell, Sr., J. A. Webster, Jr., and Miller •& Moser for defendant, appellee.

Devin, C. J.

Tbe single question presented is whether in answer to a petition for partition one tenant in common may set up claim for amounts expended to remove an encumbrance on tbe common property.

Tbe court below overruled tbe plaintiff’s demurrer to tbe answer on tbis point, and in tbis we concur.

Petitions for partition are equitable in their nature, and the court has jurisdiction to consider the rights of the parties under the principles of equity and to do justice between the parties. Raymer v. McLelland, 216 N.C. 443, 5 S.E. 2d 321; Trust Co. v. Watkins, 215 N.C. 292, 1 S.E. 2d 853; Gibbs v. Higgins, 215 N.C. 201, 1 S.E. 2d 554; Jenkins v. Strickland, 214 N.C. 441, 199 S.E. 612; McLamb v. McLamb, 208 N.C. 72, 178 S.E. 847.

The rule is that in a suit for partition a court of equity has power to adjust all equities between the parties with respect to the property to be partitioned. 68 C.J.S. 208. “A tenant in common who has paid or assumed liens or encumbrances on the property ordinarily is entitled on partition to a proportionate reimbursement therefor from the other tenants.” 68 C.J.S. 212.

In such case the sale may be ordered and the rights of the parties adjusted from the proceeds of sale. McIntosh, sec. 937. This was apparently the view of the court below in remanding the cause to the clerk for further proceedings as by law provided.

Affirmed.