Outlaw v. . Outlaw

"WalkeR, J. The contention of the plaintiff is that while the partition was accomplished by the consent and agreement of the parties, and there is no provision therein for any charge for owelty or equality of division, such a stipulation or understanding is implied from the very nature of the transaction, it being a proceeding for partition, in which it is generally, if not universally, the rule to charge the larger or more valuable share with a sum to be paid to the one of less value, in order to effect an equal or equitable partition of the land. It has been said that owelty of partition is a sum paid or secured, in the ease of partition in unequal proportions, by him who has received the larger and more • valuable portion to him who has received the less, for the purpose of equalizing the portions. The power of awarding owelty of partition formerly rested in the court of chancery, and a court of law could not award it in a case of compulsory partition by writ. 21 A. & E. (2 ed.)y *258 p. 1179. Justice Mall said for this Court: “I think the lands on which such sums are charged are not only securities for the moneys so charged, but are themselves the debtors. This appears to be just and fit, in a case where partition is made of lands between persons possessed of no other property. ■ The law cannot contemplate the injustice of taking property from one person and giving it to another, without an equivalent, or a sufficient security for it.” Wynne v. Tunstall, 16 N. C., 28. There is no difficulty where the partition is a compulsory or judicial one, for in that case there is express statutory authority for the more valuable shares to be charged with sums to be paid to those of inferior value for the purpose of owelty or equality of division. C. S., 8222. But here the partition was made under an agreement between the cotenants, and the statute has no application, as the case is not within its terms. There is no provision in the agreement itself for a charge of owelty. Some courts intimate that perhaps it may be made in the absence of such an express stipulation. Long v. Long, 41 Pa. (1 Watts), at 269. Nor is there any trouble in deciding such a question where the parties are proceeding in equity to effect a partition of their lands held in common. “In regard to partitions, there is also another distinct ground upon which the jurisdiction of courts of equity is maintainable, as it constitutes a part of its appropriate and peculiar remedial justice. It is that courts of equity are not restrained, as courts of law are, to a mere partition or allotment of the lands and other real estate between the parties according to their respective interests in the same, and having a regard to the true value thereof. But courts of equity may, with a view to the more convenient and perfect partition or allotment of the premises, decree a pecuniary compensation to one of the parties for owelty or equality of partition, so as to prevent any injustice or unavoidable inequality. This a court of common law is not at liberty to do; for when a partition is awarded by such a court, the exigency of the writ is that the sheriff do cause, by a jury of twelve men, the partition to be made of the premises between the parties, regard being had to the true value thereof, without any authority to make any compensation for any inequality in any other manner.” 1 Story Eq. Jur. (13 ed.), see. 654, p. 661, etc. But where there is an agreement for partition, that is, a voluntary proceeding, some question may be raised as to whether a charge for owelty in partition can be made without being sanctioned by the parties in their agreement, and about this there seems to be some discordance in the authorities. Some courts hold that there can be, for they treat the partition as in effect a sale of land and the charge of owelty as purchase money, and allow the charge as being in the nature of a vendor’s lien, which has not been adopted in this State (Womble v. *259 Battle, 38 N. C., 182), or as an extension of tbat doctrine. ¥e bave not been able to find any case decided by tbis Court precisely on tbe question bere involved, nor were we cited to any snob case. Tbe plaintiff in bis brief offered us no authority for bis position tbat be is entitled to bave tbe amount due to bim charged upon tbe land, from which it is due for owelty, and we imagine there was none to be found, else bis counsel, by bis usual and great diligence, would bave given us tbe benefit of it. But however tbat may be, tbe law may still be with bim, but we would not decide tbe question at tbis time, as there is one party, at least, who is vitally interested in such a decision, and who is not a party to tbis action, and tbat is N. W. Outlaw, tbe vendee of N. B. Outlaw. It is alleged in tbe complaint, and so appears to be, tbat before tbis suit was commenced, N. B. Outlaw sold and conveyed bis share of tbe land as tenant in common to N. W. Outlaw, and as plaintiff’s principal if not bis only equity is founded upon a mistake discovered in tbe acreage of tbe plaintiff’s share, it may be tbat N. W. Outlaw purchased tbe land for value and without notice of tbe alleged equity, and is entitled to take and keep bis land altogether discharged of it. There is, at least, some allegation, if not proof, tbat be is a purchaser of tbat bind. Tbis Court would not proceed to adjudge as to tbe rights of such a purchaser without having bim a party to tbe record, so tbat all persons interested in tbis share of tbe land may be bound by tbe decree and thereby clear tbe title. He would be a proper party if not a necessary one. We will not, therefore, decide as to tbe charge or lien upon tbe share for owelty, or upon tbe other questions tbat may be involved, but modify tbe judgment so as to let it stand, as to tbe personal obligation of tbe defendant N. B. Outlaw, for tbe amount allowed as owelty because of tbe surveyor’s mistake as to tbe acreage (Henofer v. Really Co., 178 N. C., 584), and vacate it as to tbe charge upon tbe land for equality of division until N. W. Outlaw is either brought into tbis suit as a party or until by a separate action tbe share of N. B. Outlaw, purchased by bim, is properly charged with tbe payment of tbe money, if liable for it. If N. W. Outlaw were a party, tbe case would present a most interesting question, which should be determined only upon tbe most careful and fullest consideration. Costs of tbis appeal to be paid by tbe plaintiff, there being really no contest as to tbe debt, but only as to tbe lien. Modified and affirmed.