Butler v. Weisler

PARKER, Judge. The question presented is whether defendants are entitled to relief from the orders of the Assistant Clerk which directed and later confirmed the sale of the real property in which defendants own a one-third undivided interest. A proper solution of this question requires that we first determine the substantive rights, vis-a-vis each other, of parties owning interests in real property as tenants in common. “A tenant in common is entitled, as a matter of right, to a partition of the land to the end that he may have and enjoy his share therein in severalty, unless it is made to appear that an actual partition cannot be had without injury to some or all of the interested parties,” Seawell v. Seawell, 233 N.C. 735, 65 S.E. 2d 369 (1951), in which case a sale of the property may be ordered by the court. G.S. 46-22. However, a partition in kind, if it can be fairly accomplished, is always favored over a sale, since this does not compel a person to sell his property against his will. Brown v. Boger, 263 N.C. 248, 139 S.E. 2d 577 (1965). In the case last cited, Moore, J., speaking for our Supreme Court, said (at pp. 256 and 257) : “It is essential to a sale of land for partition that it be established that an actual division in kind cannot be made without injury to some or all of the cotenants. G.S. 46-22. By ‘injury’ to a cotenant is meant substantial injustice or material impairment of his rights or position, such that it would be unconscionable to require him to submit to actual partition. 68 C.J.S., Partition, § 127, p. 190. Since partition in kind is favored, such partition will be ordered, even though there may be some slight disadvantages in pursuing such method. Ibid., p. 192. A sale will not be ordered merely for the convenience of one of the cotenants. Ibid., p. 190. The physical difficulty of division is only a circumstance for the consideration of the court. Mineral Co. v. Young, supra [220 N.C. 287, 17 S.E. 2d 119]. On the question of partition or sale the determinative circumstances usually relate to the land itself, and its location, physical condition, quantity, and the like. 68 C.J.S., Partition, § 127, p. 193. ‘The test of whether a partition in kind would result in great prejudice to the cotenant owners is whether the value of the share of each in case of a partition would be materially less than the share of each in the money equivalent that could probably be obtained for the whole.’ [239] (Emphasis added.) 4 Thompson on Real Property, § 1828, p. 309. But many considerations, other than monetary, attach to the ownership of land. Hale v. Thacker, 12 S.E. 2d 524 (W.Va. 1940). No exact rule is possible of formulation to determine the question whether there should be a partition in kind or a partition by sale. The determination must be made on the facts of the particular case. 68 C.J.S., Partition, § 127, p. 190. There should be a partition in kind unless such partition will cause material and substantial injury to some or all of the parties interested. “The court has no authority to order a sale of land for partition without satisfactory proof of facts showing that an actual partition will cause injury to some or all of the cotenants. Wolfe v. Galloway, supra [211 N.C. 361, 190 S.E. 213]. The essential facts must be found by the court. Seawell v. Seawell, supra [233 N.C. 735, 65 S.E. 2d 369].” Examining the present proceedings in the light of the foregoing principles, the record reveals that at the time the order of sale was entered by the Assistant Clerk on 26 May 1972, no witnesses were sworn, no evidence was presented, and no findings of the essential facts were made to support the conclusion arrived at “that an actual partition of the lands mentioned and described in said petition cannot be made without injury to the parties interested therein.” At the hearing held 28 September 1972 on defendants’ motion to be relieved from the order of sale petitioners’ attorney, Edwin E. Butler, stipulated that: “Mr. Moore [the attorney who represented defendants when the order of sale was entered] and myself came before Mrs. Campbell [the Assistant Clerk] with the judgment prepared and told her that it had been agreed upon between counsel, that she should sign that order and that thereupon she signed it.” At the same hearing on 28 September 1972, Attorney Moore testified: “Mr. Butler prepared the May 26 order. We did not preempt the prerogative of the Clerk and tell her she had to sign it. We came in with the order of sale prepared. We had some conversation about the matter. I think we had some conversation on behalf of Mr. Butler who had a plat of the land. I believe we had some conversation concerning [240] the appraisal that Mr. James Thomas had made. In our conversation we told Mrs. Campbell that we were in aecord and that the order of sale was satisfactory to all parties involved and based on what she knew of the case and what she heard us talk about and what she felt was right, she signed it. No, there were no witnesses sworn in. There were no other parties present. None of the petitioners nor Mrs. Weisler were present. There was no hearing other than the conversation between the three of us.” Mr. Thomas, the realtor who had appraised the property, did not appear and testify, and his opinion as to a reduction in value of the entire property which might result from an actual partition was not even reduced to affidavit form until long after the order of sale was entered. Such independent knowledge as the Assistant Clerk may have had of land values in the White Lake area and of “the disadvantages and reduced market value to owners of waterfront property that results when back lots are occupied by owners who have access by alleyways and community piers,” was an inadequate substitute for competent evidence. The Assistant Clerk had the same powers as the Clerk of Superior Court would have had. G.S. 7A-102(b). In this proceeding she had jurisdiction over the parties and over the subject matter. Her orders directing and confirming the sale were therefore not void. However, because these orders were entered without essential findings of fact arrived at upon the basis of competent evidence, the orders were voidable and were subject to be set aside upon a timely motion under Rule 60(b) (6) of the Rules of Civil Procedure. That Attorney Moore sincerely felt he was representing the best interest of his clients when he joined in presenting the order of sale to the Assistant Clerk and that he may even have understood, mistakenly as it turned out, that he had actual authority from them to agree to a sale, cannot make, the order binding on defendants. “An attorney has no inherent or imputed power or authority to compromise his client’s cause or consent to a judgment which gives away the whole corpus of the controversy,” Howard v. Boyce, 254 N.C. 255, 118 S.E. 2d 897 (1961), and there has been no finding that Attorney Moore had been given actual authority from his clients to consent to a sale of their interest in the property. The order of sale did not purport to be a consent order, but on its face purported to have [241] been entered after a hearing. Since no hearing was in fact held, defendants’ motion to be relieved from the sale orders should have been allowed. The order appealed from which denied defendants’ motion is reversed, and this proceeding is remanded to the Superior Court in Bladen County with directions that the orders of the Assistant Clerk which directed and confirmed the sale be vacated and for further proceedings not inconsistent herewith. Reversed and remanded. Chief Judge Brock and Judge Vaughn concur.