Chadwick v. . Blades

Clarkson, J. N. 0. Code, 1935 (Michie), section 3213, is as follows: “Partition of Real Property — Partition is a special proceeding. — Partition under this chapter shall be by special proceeding and the procedure shall be the same in all respects as prescribed by law in special proceedings, except as modified herein.” Section 3215: “One or more persons claiming real estate as joint tenants or tenants in common may have partition by petition to the Superior Court.” Section 3253: “Partition of Personal Properly — Personal property may be partitioned; commissioners appointed. — When any persons entitled as tenants in common, or joint tenants, of personal property desire to have a division of the same, they, or either of them, may file a petition in the Superior Court for that purpose; and the court, if it think *612 the petitioners entitled to relief, shall appoint three disinterested commissioners, who, being first duly sworn, shall proceed within twenty days after notice of their appointment to divide such property as nearly equal as possible among the tenants in common, or joint tenants.” Ordinarily, a petition can be filed before the clerk of the Superior Court to partition property either real or personal under the above provisions of the statute. Barber v. Barber, 195 N. C., 711. The petition was to sell for division. Section 3255. In A. & E. Anno. Cases, Yol. 30, p. 402, note, citing a wealth of authorities, we find: “As a general rule it is a matter of right for a tenant in common to have partition. But it is well established that a cotenant may waive his right to partition by an express or implied agreement. . . . Equity will not award partition at the suit of one in violation of his own agreement, or in violation of a condition or restriction imposed on the estate by one through whom he claims. The objection to partition in such cases is in the nature of an estoppel. Hill v. Reno, 112 Ill., 154, 54 Am. Rep., 222. Statutes declaring that joint tenants or tenants in common shall have a right to partition were never intended to interfere with contract between such tenants modifying or limiting this otherwise incidental right, or to render it incompetent for parties to make such contracts, either at the time of the creation of the tenancy or afterwards. Avery v. Payne, 12 Mich., 540. . . . While the right to partition may be waived it seems that the waiver must be for a reasonable time. A contract among cotenants that neither they nor their heirs or assigns will ever institute proceedings for partition has been held void as an unreasonable restraint on the use and enjoyment of the land.” In the agreement between Chadwick and Blades, when Chadwick purchased the interest, it was clearly stated: “Then, in that event, the said party of the second part shall have the privilege of selling or disposing of his interest in said lease hereinbefore referred to, to any other person he may desire.” In the letter from Chadwick to Blades, he evidently fully realized the meaning of the contract and said: “In the event that you do not buy the same at this price within the next 15 days, I shall dispose of my interest as it may appear to my best interest.” The plaintiff agreed to the provisions of the lease from Dawson to Blades. He knew the kind of business and property he was purchasing — one-half undivided interest — and agreed with Blades that if he (Blades) did not purchase from him the interest in the lease he could dispose of it “to any other person he may desire.” The contract is unusual, but so written, no doubt, on account of the nature of the business, and the lease agreement between Dawson and Blades, the provisions of which Chadwick agreed to; but we construe and do not make *613 contracts. We do not think it is void as restricting alienation. Chadwick could sell to anyone he may desire. In his letter he construed the agreement that his rights after Blades’ refusal, was to dispose of his interest “as it may appear to my best interest,” to sell under the contract — not partition. For the reasons given, the judgment of the court below is Affirmed.