West v. West

127 S.E.2d 531 (1962)

257 N.C. 760

Ennis WEST v. Addie WEST and wife, Willie Jones West; Mamie West Johnson and husband, H. P. Johnson; Beulah West Wilson and husband, O. T. Wilson; Alton West and wife, Wilma West; Dollie Mae Lee and husband, B. F. Lee; Frank West and wife,_______; Iskey West Hargrove, E. A. West and G. A. West, widow of A. B. West, Deceased.

No. 178.

Supreme Court of North Carolina.

October 10, 1962.

*532 David J. Turlington, Jr., Clinton, for plaintiff and defendants E. A. West, Alton West, Addie West and Frank West, appellants.

Woodrow H. Peterson, Clinton, for defendants other than E. A. West, Alton West, Addie West and Frank West, appellees.

SHARP, Justice.

The question involved on this appeal is stated identically in the brief of both the appellants and the appellees: "Did his Honor err in concluding and adjudging that the partition which had been made among the various tenants in common was just and fair and subsequently ruling and adjudging that the Report of Commissioners be confirmed?"

Where an actual partition of lands has been ordered, whether the division made by the commissioners was fair and equitable or unequal in value is a question of fact to be determined by the Judge of the Superior Court upon an appeal from a judgment of the clerk affirming the report of commissioners. Byrd v. Thompson, 243 N.C. 271, 90 S.E.2d 394. The findings of the judge are conclusive and binding if there is any evidence in the record to support them. McMillan v. McMillan, 123 N.C. 577, 31 S.E. 729. The evidence before Judge Bone, while conflicting, was sufficient to sustain his findings.

In their brief the appellants contend that the consent judgment of March 26, 1952 was void as to Alton West for lack of consent. This question is not raised by any assignment of error and is precluded by the stipulation of July 6, 1962. "A stipulation is a judicial admission. As such, `It is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving *533 the opponent from the necessity of presenting evidence to establish the admitted fact.'" Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460.

For the reasons assigned the judgment of the court below is

Affirmed.