Foreman v. . Hough

MekrimoN, J. This is a simple application for the sale of land for partition. The petition alleged that the petitioner and the defendants were tenants in common of the land described therein, and that for causes alleged, actual partition thereof could not be made, &c. The special proceeding was therefore properly begun in the Superior Court before the Clerk representing the Court, and when issues of fact were raised he properly transferred the case to the Civil Issue Docket. The Code, §§256, 1892, 1903, 1904; Trull v. Rice, 85 N. C., 327; Capps v. Capps, Id., 508; Brittain v. Mull, 91 N. C., 498. But as the Court had general jurisdiction of the whole subject of partition, when the case came, before the Judge in term, and the parties agreed upon the facts and submitted the case to the Court for its judgment, this certainly had the effect to cure any possible irregularities as to the bringing of the proceeding, and the pleadings and proceedings therein. If ordinarily in the past, after the trial of issues of fact by the jury, and the decision of questions of law by the Court, in special proceedings, the clerk, acting for the Court, should regularly have proceeded to make further orders and judgments in the course of the proceeding, the statute (Acts 1887, ch. 276,) gives the Judge, when the case comes before him, complete authority, upon the request of either party, “to proceed to hear and determine all matters in con *389 troversy in such action, unless it shall appear to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.” The deed in question is very informal and confused in its provisions. It recites the desire of the maker to give those— several in number — to whom it is made, particular rights and privileges as to the use of the water in a valuable mineral spring, situate on the land (one acre) conveyed. This was unnecessary — merely superfluous — because the deed conveyed to the grantees the absolute estate in the land, and the right to usé the water was incident to the estate. They were tenants in common, having the fee simple, and the deed conferred upon them severally no right other than such as belonged to such tenants; they had the whole, and could have no more. The deed does not purport to give one of the grantees a larger estate, or right, or privilege in any respect than another. The parties to the proceeding are simply tenants in common of the land, and there is nothing peculiar in the rights of all or any one or more of these in respect to it, that prevents a sale of it, for the purpose of partition. There is no error, and the judgment must be affirmed. No error. Affirmed.