Raymer v. . McLelland

Barnhill, J. This appeal presents but one question for determination. Was the court below without power and authority to grant the relief prayed by the defendant in her answer ? Partitions and sales for partition are equitable in their nature. Weeks v. McPhail, 128 N. C., 130, 39 S. E., 732; Seaman v. Seaman, 129 N. C., 293, 40 S. E., 41; Trust Co. v. Watkins, 215 N. C., 292. When this cause reached the civil issue docket the court had jurisdiction to review the rights of the parties under the principles of equity and to make such order as was necessary to do justice between the parties. Trust Co. v. Watkins, supra. Under the proper interpretation of the consent judgment the plaintiffs were allotted one-half of the real property in value subject to one-half of the debts and costs of administration. The defendant was allotted the other one-half, including specifically the home place and certain contiguous property to which she would have been entitled under the will or at law, subject to one-half of the debts and costs of administration. She now asks that the spirit and purpose of this consent judgment be complied with and offers to pay the one-half of the debts and costs of administration assessed against her real property in exoneration thereof. All that she asks is that the plaintiffs do likewise, or that their share be sold to pay that portion of the debts and costs of administration for which it is primarily liable. She concedes that if the one-half of the real property allotted to the plaintiffs does not bring a sufficient amount to pay the charges against it, then that her share is liable for the balance. We can see no reason why the court below, in the exercise of its equity jurisdiction, does not have full jurisdiction, power and authority to grant the relief prayed by the defendant. Otherwise, the plaintiffs will be permitted to sell the one-half of the real estate allotted to them for the *446 payment of all, ratber than one-half, the debts, and then to resort to the defendant’s real property for their one-half share. The rights of the creditors are not adversely affected. If the relief defendant seeks is granted the payment of their claim is still assured. Therefore, Hinton v. Whitehurst, 73 N. C., 157, is not in point. Likewise, the contention of the plaintiffs that the consent judgment effected an equitable conversion of the real property and that there can be no reconversion except by consent of all the interested parties, under the decision of Seagle v. Harris, 214 N. C., 339, is without merit. Upon the defendant’s answer and prayer for equitable relief the court below should review the rights of the litigants and make such order as is necessary to do justice between the parties. In any event, Tracts Nos. 2 and 3, as described in the petition, should be first sold and the proceeds thereof applied to the payment of the debts in ascertaining the amount for which the defendant’s real property is primarily liable. These tracts were purchased at foreclosure sales to protect mortgage notes held by the administrator. In adjusting the equities between the parties they should be treated as personal property. Error.