Henderson v. Wallace, 72 N.C. 451 (1875)

Jan. 1875 · Supreme Court of North Carolina

72 N.C. 451

MARGARET HENDERSON and others v. JOSEPH WALLACE and others.

One who was not a party to. a former petition in Equity for a sale for partition, is in no Way affected by any decree or proceeding in it: Therefore, such party cannot bring an action by Way of Bill or Review, to modify or vacate the decree made in such original action,

PbtitioN, to vacate and set aside a decree, heard before Moore, J., at the Special (July) Term, 1873, of MecKdeNbukg Superior Court.

This action was brought by one who was rightfully entitled to a share of the land sought to be divided, under a petition for partition in 1860, in the former Court of Equity, but who was not, nor never has been a party to the pleadings, for the purpose of vacating or reforming the decree made in such original suit. For the reasons, sustained by Justice Rodman in his opiuion, the Court below dismissed the plaintiff’s case, whereupon they appealed.

Wilson c& Son, for appellants.

Barringer, Brown and Dowd, contra.

Rodman, J.

It seems clear that as Jane McCoombs was not a party to the bill in equity for the partition' of the lands-through a sale, she was in no ways affected by any decree or proceedings in it, and that therefore she is net at liberty to-bring an action in the nature of a bill of review, to vacate the decree. Her estate in the lands remains as it was before any decree for sale. She stills owns one-seventh of the lands, and may enter into possession along with her co-tenants, or have-any process which a co-tenant is entitled to, for partition..

Probably also the Court, on her motion, would allow the-original bill for partition to be amended by making her a' party. What the effect of such an amendment might be on her interests, we are not called on to say.

The present action cannot be maintained.

Per Curiam. Action dismissed.