Hyman v. . Edwards

Barnhill, J. The defendants, other than Nathan A. Edwards and wife and Lillie E. Cohen, are joined as parties defendant by reason of their interest as lienors. The plaintiffs own a one-fourth interest in the property which consists of four brick buildings in the town of Goldsboro and the defendant Nathan A. Edwards now owns a three-fourths interest, he having purchased the interest of the defendant Lillie E. Cohen since the institution of the proceeding. The defendants, contending that the order of 'Williams, J., was interlocutory from which no appeal lies, moved to dismiss the appeal as being premature. All orders in a proceeding for the partition of land other than the decree of confirmation are interlocutory. Navigation Co. v. Worrell, 133 N. C., 93; Telegraph Co. v. R. R., 83 N. C., 420; Hendrick v. R. R., 98 N. C., 431; Crocker v. Vann, 192 N. C., 422, 135 S. E., 127. Until the confirmation of the report in a special proceeding for partition the whole matter rests in the judgment of the clerk, subject to review by the judge, whose action is binding on us unless an error of law has been committed. Taylor v. Carrow, 156 N. C., 6, 72 S. E., 76. An order appointing commissioners is preliminary and interlocutory and the judgment of the judge affirming the clerk in ordering actual partition is not res judicata and is not appealable. Navigation Co. v. Worrell, supra; Telegraph Co. v. R. R., supra; Hendrick v. R. R., supra. It is the decree of confirmation which is the final judgment. Navigation Co. v. Worrell, supra; Taylor v. Carrow, supra; Crocker v. Vann, supra. The clerk may, upon the hearing on the report of the commissioners, confirm the report or set the same aside and order a sale. His judgment on appeal may be reviewed by the judge and reversed, modified or confirmed and the judge has the authority to set aside the report and order a sale. Taylor v. Carrow, supra. It makes no difference that the appeals may go up to different judges. The appeals are all from the *344 clerk to tbe judge of tbe Superior Court. Tbe former judgments of tbe judge, being interlocutory, are subject to be set aside or modified by bim or bis successors. Taylor v. Carrow, supra. • Being better advised by tbe report of tbe commissioners tbe clerk, upon tbe motion for confirmation, or tbe judge on appeal, may find tbat tbe former order directing actual partition was impracticable and tbat a sale is essential to do justice between tbe parties. When tbe court bas tbe information coming from disinterested commissioners appointed by tbe court it then, perhaps, can form a more satisfactory opinion as to tbe rights of tbe parties. Taylor v. Carrow, supra. Likewise, it may be tbat upon tbe report of tbe commissioners appointed to make an actual partition tbe plaintiffs will be content with tbe allotment made. In any event, they should now note their exception and then challenge tbe inequity of tbe division made by exceptions to tbe report of tbe commissioners. Then tbe whole matter may come up on appeal from tbe final order, should tbe plaintiffs be dissatisfied therewith. It is well to note tbat there is a distinction between orders directing an actual partition and orders directing a sale for partition. A tenant in common is entitled, as a matter of right, to partition of tbe land held in common to tbe end tbat be may have and enjoy bis share therein in severalty unless it is made to appear by satisfactory proof tbat an actual partition of tbe land cannot be made without injury to some or all of tbe parties interested. C. S., 3233; Windley v. Barrow, 55 N. C., 66; Holmes v. Holmes, 55 N. C., 334; Haddock v. Stocks, 167 N. C., 70, 83 S. E., 9; Foster v. Williams, 182 N. C., 632, 109 S. E., 834; Barber v. Barber, 195 N. C., 711, 143 S. E., 469; Talley v. Murchison, 212 N. C., 205, 193 S. E., 148. Consequently, a decree denying tbe right to actual partition and ordering a sale affects a substantial right which is not again presented to tbe court for review by exceptions to tbe report of tbe commissioner appointed to make sale. This Court will entertain appeals therefrom. Talley v. Murchison, supra; Trust Co. v. Watkins, 215 N. C., 292, 1 S. E. (2d), 853; Windley v. Barrow, supra; Trull v. Rice, 85 N. C., 327; Barber v. Barber, supra. Tbe motion of tbe appellees to dismiss tbe appeal for tbat it is premature must be sustained. Appeal dismissed.