Vaughan v. . Vincent

Ashe, J. The only exceptions taken to tiie judgment of the superior court, were, to the striking out the answer of the defendants, and to the directions given the receiver and commissioner as to the disposition of the fund. The proceeding was commenced before the clerk upon the defendants’ giving a bond for costs and damages, and filing their answer, in which the defence of “sole seizin” was set up, and the case was put on the trial docket of the superior court, that the issue raised by the pleadings might be tried by a jury. The power of the court to require the bond of the defendants in such a case being conceded, it follows that the court upon a proper affidavit, such as -was filed in the case, had the power to order an increased security for the costs. Rollins v. Henry, 11 N. C., 467. And if it had the power to order the enlargement of the security, in the event of a failure to comply with the order, the court must have had the same power to strike out the answer as it would have had if no bond had been orignally filed. The proceeding, when “sole seizin” is pleaded, like ejectment, is an action for the recovery of real property; and section 382, ch. 17, Battle’s Revisa!, requires, that “in all suits in the superior court for the recovery of real property or the possession thereof, the defendant, before he is permitted to plead, answer, or demur, shall execute a bond to secure such costs and .'damages as the plaintiff may recover,” &c. If no bond shall be given, the defendants have no right to answer; and if they should answer without filing the bond required, the court would have the power to strike out the answer and render judgment, as for want of an answer; and the court having the power to order an additional bond, in a proper case, would, upon the same principle, have the power to strike out the answer filed — the same as if no bond had been given. But when the answer is stricken out, there is no issue to be *119 tried: the ease loses the character of a suit for the recovery of real property, and stands, as originally, in the clerk’s court, a “special proceeding” for the sale of land for partition between tenants in common. And as it is the issue to be tried which gives the superior court, in term, jurisdiction of the case, as soon as the issue is withdrawn, that court is divested of its jurisdiction, and any order or judgment it might make, except in a proper case to appoint a receiver, would be comm nonjudice. But we do not consider this a proper case for the appointment of a receiver. When the answer was stricken out, there was no other pleading in the case but the petition: there was nothing before the court to show that the defendants were in the exclusive possession of the rents and profits, excluding their co-tenants, the plaintiffs,, from all participation therein, or that the defendants were insolvent or .mismanaging the common property. The courts are averse to the appointment of receivers in actions between tenants in common, except for some such causes as those above mentioned. High on Receivers, 603. We are of the opinion there was error in the appointment of a receiver, and ordering the sale. In other respects the judgment is affirmed. The case is remanded to the superior court that a procedendo may be issued to the clerk of said court to proceed to order a sale of the land described in the petition according to the course of practice in said court. Error. Judgment accordingly.