Bragg v. . Lyon

Ashe, J. (after stating the case). There was no error in the ruling of his Honor, that the clerk of the Superior Court had no legal power or authority to order a sale of the estate of the defendant Edward B. Lyon, who was a tenant by the courtesy, when objection to such sale had been made by him. The decision in the case of Parks v. Siler, 76 N. C., 191, is decisive on the point. It was there held, “The Courts have no power to order a sale of land for partition, when one of the defendants interested therein is a tenant by courtesy, and objects to the sale.” “That the Court had no such power at common law and there is no statute which confers it,” and the true reason, aside from that assigned by the late Chief Justice in the above cited case, is that the Court, upon a sale of the estate of a tenant by the courtesy, would not have the power to set aside and secure out of the pro *153 ceeds of the sale a sum proportionate to his share in the same, and direct the interest to be paid him for life, or to pay to him a sum in gross ascertained as the value of his life estate, as might be done when a widow entitled to dower joins in the petition for sale for the purpose of partition. But it is contended that there was error iu the ruling that the petition should be dismissed as to the interest of Edward B. Lyon, and that the residue of the land, being two-thirds thereof, should be sold. This presents the only question for our consideration. When there is a tenancy in common, each claimant has the right to a'partition, and to have his interest apportioned to him in severalty if the estate be susceptible of division, but if not or it shall be made appear upon the application of any one or more of the claimants by satisfactory proof, that an actual partition cannot be made without injury to one or more of the parties interested, the Court shall order a sale of the property. The Code, §1904. The Courts of Equity have always had the power to make partition as one of its known and accustomed heads of jurisdiction, but it had no power to order a sale of land for that purpose, before such jurisdiction was conferred upon it by statute. After it was invested with that jurisdiction, it possibly had the power to make a decree directing a partial sale such as was ordered by his Honor in the Court below. But this proceeding is not in a Court of Equity, but in the Superior Court before the clerk who had no equity jurisdiction; and besides, the statute giving jurisdiction to Courts of Equity over sales for partition, has been repealed by §§1903 and 1904 of The Code, which confers that jurisdiction upon the Superior Courts to be exercised by the clerk, who is not vested with any equity powers, except where specially conferred by statute. It would seem, therefore, that as the right to decree a partial partition was a power incident to an equity jurisdiction, the clerk could have no power as was exercised by him in this case, to *154 order a sale of a part of the land and leave the residue unsold. The Legislature, we think, in enacting the above cited section of The Code, contemplated a sale of the whole land, and the clerk had no right to order a partial sale. Our conclusion therefore is, that there was error in the judgment rendered by the clerk, and also in that of his Honor in affirming the judgment of the clei’k, and as Edward B. Lyon, the tenant by the courtesy, objected to the sale, we cannot do otherwise, under the decision in Park v. Siler, supra, than dismiss the petition. The petition is dismissed, with the costs to Edward B. Lyon to be paid by the petitioners. Error. Dismissed.