Batts v. Gaylord

Higgins, J. This proceeding originated before the clerk superior court under the provision of Chapter 46 of the General Statutes. The petition alleges and the answer admits the four children of W. Y. Gaylord are his heirs at law and that Beulah W. Gaylord is his widow, entitled to dower in the described lands. The children as tenants in common are entitled to have the lands partitioned; that actual partition cannot be had without injury to some of the shares and that a sale, therefore, should be made; the value of the widow’s dower should be computed and paid to her. Under these allegations and admissions each child would be entitled to one-fourth the remainder. Partition among tenants in common is a matter of right. Seawell *184 v. Seawell, 233 N.C. 735, 65 S.E. 2d 369. If actual partition cannot be made without injury to some of the tenants, sale for partition then becomes a matter of right. Richardson v. Barnes, 238 N.C. 398, 77 S.E. 2d 925. The respondent widow admits all allegations in the petition subject to her claims against the fund. It may be noted that her allegations show that she has on hand from rents $1,760 which is sufficient to discharge her claim for taxes and insurance. However, a claim for improvements to the land arises only when one tenant in common makes improvements on the common property. Jenkins v. Strickland, 214 N.C. 441, 199 S.E. 612; Layton v. Byrd, 198 N.C. 466, 152 S.E. 161. A widow’s right to dower does not make her a tenant in common. Sheppard v. Sykes, 227 N.C. 606, 44 S.E. 2d 54. A claim for betterments is only available to one who makes permanent improvements while in possession of lands under color of title believed to be good. Pamlico County v. Davis, 249 N.C. 648, 107 S.E. 2d 306; Pritchard v. Williams, 176 N.C. 108, 96 S.E. 733; G.S. 1-340. Both improvements and betterments arise from equitable principles. The widow, therefore, cannot assert either claim in this proceeding. The widow’s claim or cause of action against each of the three children for expenses is a separate, independent, and distinct claim from the others. Two of these children are still minors. The widow’s attempt to combine the causes of action is a misjoinder. “The cross action must have such relation to the plaintiff’s claim that the adjustment of both is necessary to the full and final determination of the controversy. Schnepp v. Richardson, 222 N.C. 228, 22 S.E. 2d 555. This means that it must be so interwoven in plaintiff’s cause of action that a full and complete story as to the one cannot be told without . . . the other.” Hancammon v. Carr, 229 N.C. 52, 47 S.E. 2d 614. “Matters set up by the cross bill or cross complaint in an action for partition must relate to, and be connected with, the matters involved in the original bill or complaint, and to the relief sought in the original bill, and it cannot be used to seek relief as to matters not involved in the original bill.” 68 C.J.S., Partition, § 95d. Each child has an independent right to contest the claim of the widow. If the dispute involves issues of fact, either party is entitled to a jury trial. We have discussed taxes and insurance as falling in the same category only for the purpose of showing that in this particular case the widow has not stated a cause of action for the payment of either due to her allegation she had on hand receipts from rents more than enough to pay both. Ordinarily taxes on hand are a lien *185 upon land and may be treated as any other docketed judgment. Insurance premiums are not a lien. We conclude that the matters which the widow seeks to set up do not properly arise in this special proceeding. The Court should have sustained the demurrer to the counterclaims or cross action and should have remanded the proceeding to the clerk superior court for appropriate orders. Nothing said herein is intended to preclude the widow from asserting in a proper forum any claim she may have against any party hereto. The judgment overruling the demurrer is Reversed.