Wolfe v. . Galloway

Clarkson, J. N. C. Code, 1935 (Michie), sec. 139, is as follows: “Where any parent dies intestate, who has in his or her lifetime given *365 to or put in tbe actual possession of any of bis or ber children any personal property of wbat nature or kind soever, sucb child shall cause to be given to the administrator or collector of the estate an inventory, on oath, setting forth therein the particulars by him or her received of the intestate in his or her lifetime. In case any child who had, in the lifetime of the intestate, received a part of the estate, refuses to give such inventory, he shall be considered to have had and received his full share of the deceased’s estate, and shall not be entitled to receive any further part or share.” Thompson v. Smith, 160 N. C., 256; Paschal v. Paschal, 197 N. C., 40. From the facts found by the referee, we think the plaintiff Mrs. Jacksie Wolfe was liable to account for advancements. The referee found that “The mother was dead and the plaintiff, the granddaughter, stood in the place of her mother and was entitled to such funds as the mother might receive, that it was his intention to charge as advancements such items enumerated above. The major part of these charges were made against Mrs. Wolfe for, expenses incurred after she was eighteen or twenty years of age, and the others were principally for advantages in the way of schooling. No charges were made for expenses of rearing the plaintiff.” Then again, it was agreed that the advancements found due by the various heirs at law of J. M. Thrash, deceased, “shall be final and binding on all parties hereto, with respect to any and all advances.” The plaintiff Mrs. Jacksie Wolfe is estopped to make the contention she now makes. In her brief she says : “Plaintiffs were perfectly willing to abide by the judgment of the court and did not want to appeal, but inasmuch as the defendant appellants insisted on bringing the case to the Supreme Court, Mrs. Wolfe desires to present her contentions to the court in regard to this.” The defendants made a motion to dismiss plaintiffs’ appeal “That under Eule 28 of Practice in the Supreme Court, plaintiff appellants were required to file their brief by noon 13 February, 1937, and they failed to do so until 19 February, 1937.” The plaintiffs’ appeal is dismissed under the rule. As to defendants’ appeal: They contend “that the jurisdiction in this action was limited to an accounting for the advancements to the various heirs, and a determination of the respective shares of said heirs in the estate left.” It will be noted that the action was brought in the Superior Court (1) For accounting for advancements; (2) “That commissioners be appointed to divide and allot to each of the heirs of J. M. Thrash, deceased, their respective shares of the real estate heretofore described, such allotment to take into consideration the advancements found to have been made to each of the said heirs.” *366 The action for an accounting is an equitable matter and was instituted in the Superior Court. Art. IV, sec. 1, Const, of N. C., reads: “The distinctions between actions at law and suits in equity, and the forms of all such actions and suits, shall be abolished; and there shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action,” etc. See In re Estate of Wright, 200 N. C., 620 (628); Reynolds v. Reynolds, 208 N. C., 578 (624). In Sumner v. Staton, 151 N. C., 198 (201-2), it is said: “There is another principle of equity jurisprudence equally well founded, and that is that equity will not suffer a right to be without a remedy. 'And it may be further observed,’ says Mr. Bispham, 'that equity will not only not support a right to be unaccompanied by a remedy, but it will make the remedy, when applied, a complete one.’ This learned and accurate writer states another rule of equity courts which fits exactly such a condition as this case presents: 'When a court of chancery acquires jurisdiction for any purpose, it will, as a general rule, proceed to determine the whole cause, although in so doing it may decide questions which, standing alone, would furnish no basis of equitable jurisdiction.’ Bispham (6th ed.), sec. 37. To the same effect are our own decisions. Oliver v. Wiley, 75 N. C., 320; Devereux v. Devereux, 81 N. C., 18.” In 20 R. C. L., pp. 773-774, is the following: “In this country, also, the manifest hardship arising from the division of property of an im-partible nature has been almost universally avoided by statutory provisions to the effect that any person entitled to a partition shall be entitled to have the premises sold, if they are so situated that partition cannot be made, or that it would be manifestly to the prejudice of the parties if the property were not sold rather than partitioned, and some of the American courts have held that equity has such power, independently of statute. Partition by sale is a matter of absolute right when the conditions prescribed by the statute to authorize a sale are found to exist, but the burden of proof to establish the necessary requisites to a sale of land rather than a partition is on the party alleging the necessity and advisability of such sale; and it has been held that a finding that a sale is necessary, not based on the consent of the parties or the report of commissioners or on evidence heard by the chancellor, will not support the order of sale.” N. C. Code, 1935 (Michie), sec. 3233, is as follows: “Whenever it appears by satisfactory proof that an actual partition of the lands cannot be made without injury to some or all of the parties interested, the court shall order a sale of the property described in the petition, or any part thereof.” *367 Tbe defendants contend “In the absence of any allegation, proof, or finding that an actual partition cannot be had without such injury, the court has no jurisdiction to order a sale.” ¥e think by analogy to the statute and the fact that no evidence was heard by the chancellor or facts found to show a right to sell for partition, the cause must be remanded. We see no other prejudicial error in the record. The intelligent and careful referee, in his report, says: “That because of the involved nature of the estate and the innumerable complicated questions of fact such as the proper application of various funds paid by the decedent, J. M. Thrash, to the various heirs and various other questions of like kind, your referee, when the evidence had proceeded practically to its completion, clearly saw that an amicable settlement would be to the best interest of all concerned, and with that thought in mind, used his best efforts (perhaps went too far) to get the parties to agree upon a settlement. Tour referee felt that this was particularly desirable since this was a family matter and hence involved more than the actual value of the property in question,” etc. No agreement could be had and one of the parties “insisted that the referee render a decision on the evidence.” The defendants, in their brief, say: “By agreeing that the referee should act as arbitrator the parties enormously restricted what would otherwise have been almost endless litigation, but of course in so doing they placed very great powers in the hands of the arbitrator. Taking the testimony consumed weeks. The record was more than 700 pages. Over a thousand exhibits were offered,” etc. We might say that the printed record is hard to read and is not in accordance with our rules, and is a jumbled record. . In the record we find error, but on the whole record we think the learned judge in the court below “dispensed with law and administered justice.” We must follow the law. For the reasons given, Error and remanded.