Luther v. . Luther

AlleN, J. The authorities seem to agree that tenants in common cannot, as a matter of right, have partial partition of the lands owned by them, and that when only a part of the land is described in the petition the defendant may allege that there are other lands owned in common and have them included in the order of partition. 30 Cyc., 177; Brown v. Lynch, 21 Am. St., 473; Bigelow v. Littlefield, Am. Dec., 484. In the last case cited, the Court says: “One tenant in common cannot enforce partition of part only of the common estate. Such a course would lead to fraud and oppression. If a different rule'should be adopted and three or four small tracts of land were owned in common, separate petitions could be filed for each, costs would be increased, and frequently sales for division would be necessary, when if all were included in one petition an actual partition would be practicable. It is, however, true, as contended by the petitioner, that the defendant cannot by answer introduce into the proceeding lands in which others, who are not parties, are interested. Simpson v. Wallace, 83 N. C., 477; Brooks v. Austin, 95 N. C., 474. *502 Applying these principles to the facts appearing in the record, the order of bis Honor was, in our opinion, erroneous. "When the proceeding was before the clerk, the objection of the petitioners was well taken, because at that time, as to one of the tracts of land described in the answer, it was alleged that three persons were interested, who were not parties; but on appeal, by leave of court, this tract was eliminated, and the proceeding being before the judge, he could hear and determine all matters in controversy. Roseman v. Roseman, 127 N. C., 498. But the petitioners further say that the elimination of the third tract did not cure the evil, because it is alleged in the petition that Ida Luther has an interest in the lands described in the petition, and it does not appear that she has any interest in the lands described in the answer. There would be much force in this contention but for the form of the allegation in the petition, which is that “the defendants D. P. Luther and Ida Luther are joint tenants, as between themselves, of an undivided one-half interest in said lands,” which we understand to mean an estate by entireties, imder Bruce v. Nicholson, 109 N. C., 205, and other cases, with the right of survivorship. If so, no separate part of the land would be allotted to Ida Luther, but one share would be set apart to D. P. Luther and Ida Luther. This is in accord with the policy of our law, which is to discourage multiplicity of actions, and to' administer the rights of the parties in one proceeding, when possible. Reversed.