Wright v. McCormick, 77 N.C. 158 (1877)

June 1877 · Supreme Court of North Carolina

77 N.C. 158

W. B. WRIGHT and wife v. R. M. McCORMICK and others.

Practice--Aetion to Recover Land — Partition.

Where in an action for the recovery of land the plaintiff showed titles under proper proceedings in partition and the defendant admitted possession ; Meld, that plaintiff was entitled to recover.

( Wrigid v. McCormick, 69 JSf. O. 14, cited'and approved.)

Civil AotioN to recover Possession of Land, tried at-Spring Term, 1877, of CumberlaNd Superior Court, before McKoy, J.

The plaintiffs read in evidence a petition, order of partition, appointment of commissioners, and an order confirming their report in the case of the'present plaintiffs against Bun-can McCormick, the devisor of the present defendants, and under whom the defendants claim the land in dispute. See .69 N. C. 14. The description of the land in the complaint-was the same as in said petition, decree and report of commissioners.

Tbe defendants adtíiitted that they were in possession of' tbe land at tbe time tbe action was brought! and tbe plaintiffs demanded possession of .tbe same upon' tbe ground that it was allotted to them in tbe said proceeding for partition.His Honor gave judgment for tbe plaintiffs and the defendants appealed.

Messrs. McRae $ Broadfoot and N. W. Ray, -for plaintiffs-

Messrs. Guthrie $ Carr, B. Fuller and Neill McKay, for defendants.

Reade, J.

The feme plaintiff and the devisor of the defendants were tenants in common of a tract of land; and under proper proceedings bad in Court, partition of the land was made between them, allotting to each a share in severalty. An appeal was taken to this Court upon the objection by the defendants that the commissioners bad divided the wrong tract of land, but the description in the complaint- and in the report were identical, and the objection was held to be “ captious and frivolous.” Wright v. McCormick, 69 N. C. 14.

The devisor of the defendants • died before the final confirmation of the report of the commissioners and the defendants were made parties defendant, and the report of partition was confirmed and a proper decree made.

The complaint states that since that time the defendants-have taken possession of the land allotted to plaintiffs. The answer denies every thing and claims title and admits possession, “sole seizin.” Seizin in deed, as this must be taken to be, is possession. the plaintiffs’ proof of title — the record of partition before stated — was complete, and the defendants’ possession was admitted. The plaintiffs were clearly entitled to recover.

There is no error.

Pee. Curiam. Judgment affirmed'.