Meyers v. . Rice

Merrimon, C. J. (after stating facts): The Statute {The Code, §§ 1892, 1900) prescribes how real estate may be parti *28 tioned among persons claiming the same as tenants in common, and it is, among other things, provided that commissioners for the purpose shall “ meet on the premises and partition the same among the tenants in common, according to their respective rights and interest therein by dividing the land into equal shares in point of value, or as nearly so as possible, and for this purpose they are empowered to subdivide the more valuable tracts as they may deem best, and to charge the more valuable dividends with such sums of money as they may think necessary to be paid to the dividends of inferior value, in order to make an equitable partition.” The charge made as thus allowed upon the more valuable dividend of land at once becomes not a personal charge against the party to whom this dividend is allotted, but upon the land itself, and judgment confirming the report of the commissioners who partitioned the land creates and establishes the charge and a lien or liens upon such more valuable dividend in favor of the party or parties who received the less valuable dividends. Moreover, the charges thus are several and in favor of the parties respectively who received the less valuable dividends, if there be more than one. Such charge and lien may be enforced by venditioni exponas at the instance, of the party entitled, and also, in some cases, by process of attachment. Wynne v. Tunstall, 1 Dev. Eq., 28; Jones v. Sherrard, 2 D. & B. Eq., 180; Waring v. Wadsworth, 80 N. C., 345; Halso v. Cole, 82 N. C, 163, and there are numerous cases to the like effect. In the present case, the more valuable dividend designated as number “two,” wras charged with one hundred and forty dollars in favor of the less valuable dividend designated as number “six,” allotted to Fannie D. Marsh, one of the appellees, and with ninetj»' dollars in favor of the dividend designated as number “five,” allotted to the appellee J. W. Herring, and, also, with other sums in favor of others of the tenants in common, wdro received less valuable dividends. *29 Certain of the latter applied for and obtained execution to enforce their respective liens, and the more valuable dividend so charged was sold under the same, and the appellant purchased at the sale. He contends that he purchased that dividend discharged of the charges and lien in favor of the less valuable dividends allotted to the appellees. The Court held otherwise, and this is assigned as error. We are of opinion that the objection of the appellant is not well founded. The more valuable dividend — the land itself — was charged with the sums of money specified in favor of those of less value, allotted to the appellees respectively. The latter each had an interest in the land to the extent of the charge in favor of his dividend, not in common with others, who had less valuable dividends with like charges in their favor, but separate and distinct from them. So that if the more valuable dividend had paid the money charged upon it in favor of one of the less valuable ones, such payment could not effect the similar charge in favor of others. The payment of the money thus made a charge upon the more valuable dividend in favor of a less valuable one might be enforced by venditioni exponas, sued out at the instance of the owner thereof, but the sale of the land under it could not effect adversely other like charges upon the same, because its purpose would be only to enforce the charge specified in it, and not another or other charges, in the absence of some order of the Court to the contrary, made upon proper application and upon notice thereof to the owners of the dividends of less value having like charges. There is nothing in the nature of the writ of venditioni exponas, nor is there any principle of law or statutory provision or rule of practice that makes a sale of land under such writ operate so as to pass the title thereof to the purchaser discharge of senoir incumbrances or incumbrances of the same date upon it, other than that mentioned in it, and *30 which its direct purpose is to enforce. It would be unreasonable and unjust, as well as violative of common right, to deprive such incumbrancers of their interests in the land, and their security and rights growing out of it by such a sale without giving them fair opportunity — a day in Court— to be heard as to the expediency and propriety of a sale thereof. It is not sufficient to say they might look to and share in the proceeds of the sale of the land to their respective rights and the priorities of them. If heard, they might be able to show that a sale should not be made at the time and in the way proposed by the mover for the writ of venditioni exponas. They have the right to be heard in Court, and they cannot be deprived of that right without notice and reasonable opportunity to be heard. The purchaser of the land cannot reasonably complain that he expected to buy a perfect title. He had opportunity to see the writ under which the sale was made, the judgment or order of the Court authorizing or directing it, and know, from the proper records and registries, that there were other incumbrances on the land than that or those which the sale was intended to enforce. Sales to enforce charges upon land, such as those under consideration, are not altogether like the ordinary sales of land to satisfy judgments for money. But a sale under the writ of fieri facias does not operate to pass the title to the land sold under it discharged of prior liens of judgments for money upon it. A sale of land under a junior judgment is made subject to the lien of a senior judgment, and a second sale thereof may be made to enforce the latter, and such second sale will pass the title to the purchaser as if the first sale had not been made. This is well settled, and upon the ground that a sale under execution cannot have the effect to pass the title to land discharged of all prior liens. The judgment docketed creates the lien, and it must have effect and be enforced in the order of priority. Halyburton *31 v. Greenlee, 72 N. C., 316; Cannon v. Parker, 81 N. C., 320; Worseley v. Bryan, 86 N. C., 343; Titman v. Rhyne, 89 N. C., 64; Burton v. Spiers, 92 N. C., 503. Certain of the tenants in common, to whom were allotted dividends of less value, in favor of which the dividend of greater value was charged with certain sums of money specified, applied for and obtained a venditioni exponas to enforce the charges in their favor, and the dividend of greater value so charged was sold, the appellant being the purchaser. That application did not embrace the appellees; no notice of the same was given to them, nor did the venditioni exponas purport to embrace the charges in favor of their dividends or themselves. The appellant was chargeable with notice of these facts. It was his duty to himself to see the writ under which the land was sold, and the record authorizing the same, and the presumption is he did so. It must be taken that he knew he purchased subject to the rights of the appellees and and the charges in their favor. It seems he did, in fact. He purchased the land for much less than half its assessed value. ’ Judgment affirmed.