Henson v. Henson

72 S.E.2d 873 (1952)

236 N.C. 429

HENSON v. HENSON.

No. 386.

Supreme Court of North Carolina.

November 5, 1952.

Ottway Burton, Asheboro, for plaintiff, appellant.

P. W. Glidewell, Sr., Reidsville, J. A. Webster, Jr., Leaksville, and Miller & Moser, Asheboro, for defendant, appellee.

DEVIN, Chief Justice.

The single question presented is whether in answer to a petition for partition one tenant in common may set up claim for amounts expended to remove an encumbrance on the common property.

The court below overruled the plaintiff's demurrer to the answer on this point, and in this we concur.

Petitions for partition are equitable in their nature, and the court has jurisdiction to consider the rights of the parties under the principles of equity and to do justice between the parties. Raymer v. McLelland, 216 N.C. 443, 5 S.E.2d 321; Citizens Bank & Trust Co. v. Watkins, 215 N. C. 292, 1 S.E.2d 853; Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554; Jenkins v. Strickland, 214 N.C. 441, 199 S.E. 612; McLamb v. McLamb, 208 N.C. 72, 178 S.E. 847.

The rule is that in a suit for partition a court of equity has power to adjust *874 all equities between the parties wtih respect to the property to be partitioned. 68 C.J.S., Partition, § 135, p. 208. "A tenant in common who has paid or assumed liens or encumbrances on the property ordinarily is entitled on partition to a proportionate reimbursement therefor from the other tenants." 68 C.J.S., Partition, § 136, p. 212.

In such case the sale may be ordered and the rights of the parties adjusted from the proceeds of sale. McIntosh, sec. 937. This was apparently the view of the court below in remanding the cause to the clerk for further proceedings as by law provided.

Affirmed.