Dunn v. Dunn

Court of Appeals of North Carolina

Dunn v. Dunn

245 S.E.2d 580, 37 N.C. App. 159, 1978 N.C. App. LEXIS 2674

CourtCourt of Appeals of North Carolina

DecidedJuly 11, 1978

DocketNo. 7716SC806

StatusPublished

Cited by2 cases

This text of 245 S.E.2d 580 (Dunn v. Dunn) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunn v. Dunn, 245 S.E.2d 580, 37 N.C. App. 159, 1978 N.C. App. LEXIS 2674 (N.C. Ct. App. 1978).

Pincite

Opinion

PARKER, Judge.

So far as the record before us discloses, no interested party has at any time raised any objection to the manner in which the commissioners divided the land or to the amount of owelty assessed. No contention has been made that the drawing which was held before the clerk in the presence of two of the three commissioners was in any way unfair, and a careful reading of the record discloses no valid basis on which such a contention could be made. [162]*162The sole basis on which Judge Preston rested his judgment vacating the clerk’s order of confirmation and directing a new drawing was that one of the three commissioners was absent when the drawing before the clerk was made. The judgment appealed from thus rests solely upon the judge’s conclusion that, as a matter of law, the presence of all three commissioners at the drawing was essential to its validity and that, one of the commissioners having been absent because of illness, the drawing was fatally defective. We find that conclusion to be in error, and accordingly we reverse the judgment appealed from.

The procedure for the partitioning of real property is governed by the provisions of Article 1 of Chapter 46 of our General Statutes. No section in that Article makes provision for a drawing to determine by lot or chance the manner in which the separate parcels of partitioned real property should be allotted among the several owners. Nevertheless, “in this state partition proceedings have been consistently held to be equitable in nature,” and “[tjhe statutes are not a strict limitation upon the authority of the court.” Allen v. Allen, 263 N.C. 496, 498, 139 S.E. 2d 585, 587 (1965). Therefore, there can be no question, and none has been raised, as to the validity of the direction contained in Judge Braswell’s order of 18 February 1976 that “the commissioners” meet in the office of the clerk and there conduct a lottery at which the interested parties should “draw for one of the two respective parcels.” The sole question presented by this appeal thus becomes the narrow one of whether the reference to “the commissioners” in this portion of Judge Braswell’s order made it mandatory that all three commissioners be present at the drawing, else the drawing be fatally defective. Judge Preston concluded that to be the case. With that conclusion we do not agree.

Although our statutes make no provision for a drawing to determine the allotment of separate parcels by chance, they do throw some light upon the narrow question now before us. After making provision in G.S. 46-7 for the appointment of three disinterested commissioners and specifying in other sections the manner in which the commissioners should perform their duties, our statutes' provide, in G.S. 46-17, that the commissioners “shall make a full and ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust and describing particularly the land or parcels [163]*163of land divided, and the share allotted to each tenant in severalty, with the sum or sums charged on the more valuable dividends to be paid to those of inferior value.” (Emphasis added.) Thus, by statute, two of the three commissioners are empowered to act for all in making report to the court of “the manner of executing their trust.” If two could act for all in such an important matter, surely it is reasonable to hold that two could act for all in performing the purely ministerial duty of conducting a drawing. After all, the essential matter was that the drawing be conducted fairly, and, as already noted, there has been no contention that it was not.

The judgment appealed from is reversed, and this cause is remanded to the superior court with direction that judgment be entered approving and affirming the clerk’s order dated 27 October 1976 which in turn approved and confirmed the commissioners’ report in all respects.

Reversed and remanded.

Judges CLARK and ERWIN concur.

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PARKER, Judge.

So far as the record before us discloses, no interested party has at any time raised any objection to the manner in which the commissioners divided the land or to the amount of owelty assessed. No contention has been made that the drawing which was held before the clerk in the presence of two of the three commissioners was in any way unfair, and a careful reading of the record discloses no valid basis on which such a contention could be made. [162]*162The sole basis on which Judge Preston rested his judgment vacating the clerk’s order of confirmation and directing a new drawing was that one of the three commissioners was absent when the drawing before the clerk was made. The judgment appealed from thus rests solely upon the judge’s conclusion that, as a matter of law, the presence of all three commissioners at the drawing was essential to its validity and that, one of the commissioners having been absent because of illness, the drawing was fatally defective. We find that conclusion to be in error, and accordingly we reverse the judgment appealed from.

The procedure for the partitioning of real property is governed by the provisions of Article 1 of Chapter 46 of our General Statutes. No section in that Article makes provision for a drawing to determine by lot or chance the manner in which the separate parcels of partitioned real property should be allotted among the several owners. Nevertheless, “in this state partition proceedings have been consistently held to be equitable in nature,” and “[tjhe statutes are not a strict limitation upon the authority of the court.” Allen v. Allen, 263 N.C. 496, 498, 139 S.E. 2d 585, 587 (1965). Therefore, there can be no question, and none has been raised, as to the validity of the direction contained in Judge Braswell’s order of 18 February 1976 that “the commissioners” meet in the office of the clerk and there conduct a lottery at which the interested parties should “draw for one of the two respective parcels.” The sole question presented by this appeal thus becomes the narrow one of whether the reference to “the commissioners” in this portion of Judge Braswell’s order made it mandatory that all three commissioners be present at the drawing, else the drawing be fatally defective. Judge Preston concluded that to be the case. With that conclusion we do not agree.

Although our statutes make no provision for a drawing to determine the allotment of separate parcels by chance, they do throw some light upon the narrow question now before us. After making provision in G.S. 46-7 for the appointment of three disinterested commissioners and specifying in other sections the manner in which the commissioners should perform their duties, our statutes' provide, in G.S. 46-17, that the commissioners “shall make a full and ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust and describing particularly the land or parcels [163]*163of land divided, and the share allotted to each tenant in severalty, with the sum or sums charged on the more valuable dividends to be paid to those of inferior value.” (Emphasis added.) Thus, by statute, two of the three commissioners are empowered to act for all in making report to the court of “the manner of executing their trust.” If two could act for all in such an important matter, surely it is reasonable to hold that two could act for all in performing the purely ministerial duty of conducting a drawing. After all, the essential matter was that the drawing be conducted fairly, and, as already noted, there has been no contention that it was not.

The judgment appealed from is reversed, and this cause is remanded to the superior court with direction that judgment be entered approving and affirming the clerk’s order dated 27 October 1976 which in turn approved and confirmed the commissioners’ report in all respects.

Reversed and remanded.

Judges CLARK and ERWIN concur.

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245 S.E.2d 580, 37 N.C. App. 159, 1978 N.C. App. LEXIS 2674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-dunn-ncctapp-1978.

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