Opinion
(June Term, 1838.)
Land situate in two counties may, under the act of 1812, Rev. Stat., ch. 85, sec. 7, be sold for partition by a decree of the court of equity for either county.
HENRY SKINNER, a resident of Perquimans, died seized of a tract of land lying in that county and Chowan. All his heirs joined in a petition to the court of equity for Perquimans for the sale of the land which descended to them, for partition, and a decree was pronounced directing the clerk and master to sell it before the door of the courthouse in Perquimans. At that sale one Roberts purchased, and upon the coming in of the report of the sale he objected to the confirmation of it because he was advised that he could acquire no title under the sale to so much of the land as was situate in Chowan. SETTLE, J., on the last circuit, overruled the exception of Roberts, but allowed him to appeal.
A. Moore for appellant.
No counsel contra.
The act of Assembly declares: "It shall and may be lawful for any court of equity, in cases of application for a division of real estate, when it shall be made to appear that an actual partition cannot be made without injury to some or all interested, to order a sale of the property on such terms as the court shall deem just and reasonable." Rev. Stat., 452, sec. 7. The court, at their discretion, may direct such sale to be made on the premises, or at any other place within the county where such estate is situated. Provided, always, that when the order of sale shall contain no such direction, sales shall be made at the places prescribed by law for public sales. Ibid., sec. 9. (64) In this case there can be no doubt but that the court of equity for Perquimans County had jurisdiction, as part of the lands lay in that county and part in Chowan. The act does not confine that jurisdiction to the particular court of equity of the county where each several tract of land be situated. The terms or words of the act are: "It may be lawful for any court of equity, etc., to order a sale of the property." There was a direction in the order of sale that the lands should be sold before the door of the courthouse of Perquimans County. This is nothing more than what the law would have required of the master of that court, if nothing had been mentioned in the order as to the place of sale. The act prescribing where masters in equity shall sell lands, when there is no special direction in the order of sale, declares that they shall make sale, under decrees, at the courthouse of their respective counties. Rev. Stat., 267. As the court of Perquimans had jurisdiction to order the sale of all the lands, it seems to us that the master of that court could, by force of the act just mentioned, sell all the lands before the door of his courthouse, although some of the tracts lay in Chowan. But if this were not so, as all the heirs are plaintiffs, and the terms of sale were prescribed at their own instance, and they have moved for a confirmation of the report, they will be forever bound by it. They, although some are infants suing by guardian, will not have a day given them in the final decree to show cause against it when they come of age. It seems to us that Roberts will have such title as the plaintiffs now have, by force of a conveyance to be made by the master of the court of equity making the order of sale.
The order of confirmation of the report, therefore, is here affirmed, with costs.
PER CURIAM. Affirmed.
Cited: Geer v. Geer, 109 N.C. 682.
(65)