Sumner v. Early.

OoiraoR, J"., after stating the case. The motion of the defendants is based upon the position that the plaintiffs’ remedy for the refusal of the defendants to perform their contract was a special proceeding of which the Cleric had original jurisdiction. If the contract had contained appropriate words of conveyance whereby the parties conveyed to each other tire title to the lands described therein as tenants in common, that is, if it were an executed contract, the position of the defendants would have been correct. The contract is, however, executory, and the remedy upon it is for specific performance. If the Court shall, upon a trial of the issues raised by the pleadings, adjudge that the plaintiffs are entitled to a decree, it will in furtherance of the remedy appoint commissioners to make partition and thus give complete relief. “When the title of a co-tenant is equitable merely, and he is entitled to a conveyance of tire legal title, he may by proper pleadings assert his rights and obtain a decree of the Court compelling those in whom the legal title rests to convey according to the partition, awarded. But when the sole purpose of tire bill is to procure a partition, it will not be granted on the ground that the plaintiff is entitled to a conveyance. He must first, in the same or an independent suit, obtain a decree declaring the right to a conveyance.” Free *235 man on Co-tenants and Partition, sec. 513. “A partition of lands among several joint owners will not be made unless those by whom the partition is sought have a legal title to the portions claimed by them. A party who has a mere equitable right to a conveyance of an undivided interest is not in a position to ask for a partition.” Williams v. Wiggand, 53 Ill., 233. In that case it is said that in a bill for specific performance a.prayer may be joined for partition, but when the sole purpose of the bill is for partition it will not be allowed merely on proof that the complainant is entitled to a conveyance. No partition can be ordered until the equitable rights are determined and adjudged. It is well settled that the Clerk,, in the exercise of his statutory jurisdiction in special proceedings, may not administer equities or .equitable relief. This jurisdiction is vested solely in the Superior Court in term. The language of Mr. Justice Davis, in Efland v. Efland, 96 N. C., 488, is appropriate to and decisive of this appeal: “Equitable elements exist in this case and involve questions of law and fact which could not be adjudicated before the Clerk, and which, under the old practice, would have been cognizable in a court of equity and is properly a ‘civil action’ within the definition of Pearson, C. J., in Tate v. Powe, 64 N. C., 644.” Pollard v. Slaughter, 92 N. C., 72, 53 Am. Rep. 402; Parton v. Allison, 109 N. C., 674. We therefore conclude that the action is properly brought. The defendants’ motion to dismiss should have been denied Judgment dismissing the action will be reversed and the Court will proceed to hear and determine the cause upon the pleadings. Reversed.