Powell v. . Weatherington

Eaiecloth, C. J. Action for possession of land, both parties claiming under Edmund Evans, wbo died, and bis lands were partitioned among bis children in 1863. Lot No. 1 was *41 assigned to Holland J. Evans and was charged with $75 in favor of Lot No. 2 for equality. Holland J. Evans died in September, 1878, leaving minor children, and they are plaintiffs in this action, suing to recover Lot No. 1. Lot No. 2 was assigned to A. E. Porter and wife, in whose favor was the charge on Lot No. 1. On notice to the children, some being of age, and others minors and femes covert, a judgment was rendered and execution issued November 11, 1878, against Lot No. 1 for the amount charged on it for owelty, in the partition proceedings. This lot, now the subject of controversy, was sold and the defendants claim by mesne conveyances from the purchasers at the sale. .During the trial below these various records and proofs were put in evidence, and his Honor held that the plaintiffs could not recover, and they appealed. The plaintiffs contend that the lot could not be sold to pay the charge on it, as they or some of them were still infants, according to The Code, section 1900, until they arrive at twenty-one years of age, and therefore the purchasers acquired no title. This position is a misapplication of section 1900 of The Code. That section operates when the parties to the partition proceeding, or some of them, are infants; it does not apply to the facts in this case. The plaintiffs acquired no title by the decree for partition; they were not parties. Their father, Holland J. Evans, had the title, and plaintiffs acquired it by descent from him. Jones v. Cameron, 81 N. C., 154. When the plaintiffs inherited the lot, charged as above, they took it cum onere. Dobbin v. Rex, 106 N. C., 444. This conclusion renders it unnecessary to consider some interesting questions presented in the argument. No error.