Henson v. Henson

72 S.E.2d 873, 236 N.C. 429, 1952 N.C. LEXIS 571

• Court: Supreme Court of North Carolina
• Decided: November 5, 1952
• Docket: 386
• Status: Published

Opinion

Devin, C. J.

Tbe 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 tbe common property.

Tbe court below overruled tbe plaintiff’s demurrer to tbe answer on tbis point, and in tbis 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; 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 all equities between the parties with respect to the property to be partitioned. 68 C.J.S. 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. 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.