Thompson v. . Shemwell

Merkimon, J., (after stating the facts). No objection was made by the plaintiff to the character of the defence set forth and relied upon in the answer of the defendants. If it be granted that it might be upheld as an equitable counter-claim, we are of opinion that the single exception to the instructions of the Court to the jury cannot be sustained. The inquiry was, whether the commissioners who divided and apportioned the land, had, as a body, made a mistake as alleged against the feme defendant. The statute (The Code, §1892), provides that three commissioners shall be appointed, upon proper application, to divide and apportion real estate among tenants in common, and two of them (The Code, §1896), may^ make and sign the report required to be made to the Court. Simmons v. Fosoue, 81 N. C., 86. The Court, therefore, properly instructed the jury, “ that the question was not what Sowers, one of the commissioners (who testified), intended, and whether he had made a mistake, but what the commissioners intended”— that is, what the commissioners, as a body — a majority of them, if one dissented — intended. If two, understanding their purpose and making no mistake in that respect, concurred, that was sufficient, although the third made a mistake as to his purpose, because the concurrence of the majority is sufficient to render the division and partition operative and valid. The judgment must be affirmed. No error. Affirmed.