Coats v. Williams

136 S.E.2d 113 (1964)

261 N.C. 692

Lillie L. COATS, Widow, et al. v. Peggy L. WILLIAMS, Minor, and husband, Marvin Williams, Christine L. Byrd, Minor, and husband, Bobby Byrd, David Bruce Langdon, a Minor, and Bobby Ray Langdon, Minor.

No. 530.

Supreme Court of North Carolina.

April 29, 1964.

*114 E. V. Wilkins, Smithfield, for petitioner appellants.

Lyon & Lyon, Smithfield, for respondent appellees.

*115 BOBBITT, Justice.

"General rules of pleading as to demurrers ordinarily apply as to the grounds for demurrer to a bill, complaint, or petition for partition." 68 C.J.S. Partition § 97b; 40 Am.Jur., Partition § 71; McIntosh, N.C. Practice and Procedure, § 910(2).

The facts alleged in the petition disclose: Subject to the widow's right of dower, each of the nine children acquired an undivided one-ninth interest in the 18-acre and in the 33.2-acre tracts.

The widow's right of dower is "a fixed and vested right of property in the nature of a chose in actionthe right to demand an assignment of dower." Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 294, 1 S.E.2d 853, 855. Here there has been no assignment of dower to the widow. Unless and until dower is assigned, both tracts, nothing else appearing, are subject to the widow's right of dower. G.S. § 30-5; Harrington v. Harrington, 142 N.C. 517, 55 S.E. 409.

Tenants in common are entitled as a matter of right to partition or to a partition sale if actual partition cannot be made without injury to some of the tenants. Batts v. Gaylord, 253 N.C. 181, 116 S.E.2d 424, and cases cited. Too, a widow, in respect of her right of dower, may join in the petition. G.S. § 46-15; Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86.

The purport of petitioners' allegations seems to be that the widow, on the one hand, and the five children who are petitioners, on the other hand, have entered into an agreement whereby the widow renounces her right of dower in the 18-acre tract in consideration of their conveyance to her of their respective interests in the 33.2-acre tract. The allegations are indefinite, indeed somewhat contradictory, as to the extent, if any, the alleged agreement has been executed. Too, the petition is silent as to the widow's claim and right of dower in respect of the 33.2-acre tract.

The four children who are respondents are not parties to the alleged agreement. Consequently, petitioners may assert against said respondents only rights to which they are entitled under the law.

The petition discloses affirmatively that the sole purpose of the special proceeding is to sell the 18-acre tract and divide the proceeds equally among the nine children. The petition and prayer contemplate no action whatever with reference to the 33.2acre tract.

"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, 83 Am.Dec., 484." Luther v. Luther, 157 N.C. 499, 73 S.E. 102; see also, 40 Am.Jur., Partition § 32; 68 C.J.S. Partition § 55b (1).

Here, the petition discloses that parties to this proceeding are the owners of the two tracts. Even so, under petitioners' allegations the facts as to the respective interests of the parties in each tract are unclear. Suffice to say, the facts alleged are insufficient to show that petitioners are entitled to a partition sale of the 18-acre tract. In the absence of all relevant facts, we deem it inappropriate to discuss the extent, if any, ultimate decision may be based upon Luther v. Luther, supra.

The judgment of Judge Phillips sustained the demurrer of respondents Williams but did not dismiss the proceeding. Petitioners were granted leave to amend. In our view, this judgment was correct and is affirmed.

*116 Since the record does not show the appointment of a guardian ad litem for respondent Peggy L. Williams, we assume she was of age when the demurrer was filed.

Affirmed.