Bland v. . Faulkner

CoNNOR, J. Tbe controversy in tbis proceeding between tbe plaintiffs, on tbe one part, and tbe defendant on tbe other, originally, was as to whether there should be an actual partition of tbe land owned by them as tenants in common or a sale for division. Tbe commissioners appointed by tbe clerk pursuant to bis order made an actual partition, allotting to tbe parties to tbe proceeding tbeir shares in said land, by metes and bounds, in severalty. Exceptions were filed to tbeir report *429 by tbe plaintiffs. Pending tbe bearing of these exceptions, and before any action by tbe court upon tbe report, plaintiffs, Jesse Wallace and bis wife, wbo owned an undivided 4/7 interest in tbe land conveyed to tbeir coplaintiffs, R. E. Bland and wife, wbo owned an undivided 1/7 interest, a portion of tbe share allotted to them in tbe report of tbe commissioners. Tbe said report was thereafter set aside by tbe clerk, wbo in effect ordered that tbe land be sold for division. Tbe appeal from tbe order of tbe clerk came on for bearing before Barnhill, J., at December Term, 1925, of tbe Superior Court of Lenoir County. Judge Barnhill, upon consideration of tbe exceptions filed by plaintiffs to tbe report of tbe commissioners, made an order directing that certain issues, or more properly speaking, certain questions of fact, should be submitted to a jury at a subsequent term of said court. He thereupon continued tbe bearing. When tbe proceeding came on for bearing before Sinclair, J., at February Term, 1927, Judge Sinclair was of tbe opinion that upon tbe then state of tbe record, it was not necessary to submit to a jury tbe issues as directed by Judge Barnhill at tbe previous term. He declined to submit said issues, but did submit tbe issue as set out in tbe record. Plaintiffs, R. E. Bland and wife, excepted to tbe action of Judge Sinclair in refusing to submit tbe issues as directed by Judge Barnhill, and assign same as error. This assignment of error is not sustained. Tbe order of Judge Barn-bill was merely interlocutory. Tbe issues which be directed to be submitted to a jury were not raised by tbe pleadings, and involved matters which could have been and are usually determined by tbe judge. His order did not determine or adjudicate any rights of tbe parties. Interlocutory orders, not finally determining or adjudicating rights of tbe parties, are always under tbe control of tbe court, and upon good cause shown they can be amended, modified, changed or rescinded as tbe court may think proper. Maxwell v. Blair, 95 N. C., 318, and cases cited. Tbe principle that no appeal lies from one judge of tbe Superior Court to another (see Dockery v. Fairbanks-Morse Company, 172 N. C., 529) has no application to a mere interlocutory order. The fact that Judge Barnhill, under our rotating system, was succeeded by Judge Sinclair as tbe judge of tbe Superior Court bolding tbe courts of Lenoir County, did not deprive tbe court of power to modify or rescind tbe order. No rights of appellants have been affected by Judge Sinclair’s action which they assign as error. Tbe exceptions to tbe report of tbe commissioners were filed by plaintiffs jointly on 19 March, 1919. They thereby joined in tbe contention that tbe land was not susceptible of actual partition, but should be sold for division. Plaintiffs, R. E. Bland and wife, further excepted for *430 that the share allotted to them by the commissioners was not worth one-seventh of the value of the entire tract, their undivided interest being one-seventh. Subsequent to the filing of the joint exceptions, plaintiffs, Jesse Wallace and wife,'withdrew their exceptions and at the hearing did not resist the confirmation of the report of the commissioners. The court was of opinion that plaintiffs, both Jesse C. Wallace and wife and R. E. Bland and wife, are estopped from relying upon their exceptions by the execution and acceptance of the deed for a portion of the land allotted to Jesse 0. Wallace and wife by the commissioners. In this there is no error. The execution and acceptance of the deed was a ratification of the report. Neither plaintiff could further contend that the land should be sold for division, nor should R. E. Bland and wife be heard to contend further that the report should be set aside with respect to the land allotted to them as their share. The contention of appellants that subsequent to the execution and acceptance of the deed and mortgage, there was an agreement between them and Jesse Wallace and his wife that the transaction resulting in the conveyance of the forty-one acres of land to appellants should be rescinded, is immaterial to the matters involved in this proceeding. There was no error in the refusal to hear or consider evidence with respect to the alleged agreement. The suggestion that the controversy between the plaintiffs, which is the subject-matter of this appeal, has arisen because of the decline in land values since 1920, seems to have support. However this may be, we find no error in the record, and the judgment is Affirmed.