Parks v. . Siler , 76 N.C. 191 ( 1877 )

The petition was for the sale of land for the purpose of partition. The defendants object to a sale for partition, on the ground that the defendant Siler is tenant by the curtesy in one undivided moiety of the land ; but do not object to an actual partition so that each moiety may be held in severalty.

His Honor was of opinion that the plaintiff had no right to an order of sale and dismissed the proceeding. We concur in this opinion. At the common law "coparceners" might compel partition by original writ, when the parceners were seized of the land and the one was a good "tenant to thepraecipe"; but if a freehold estate intervened as an estate by curtesy or other life estate, the writ did not lie because there could be no tenant of the praecipe In the case of dower a partition could be made subject to the widow's right, her dower being first assigned by metes and bounds and the partition had with respect thereto.

Joint tenants and tenants in common could not compel partition except by statute which authorizes the Court to compel partition in like manner as between coparceners.

It was afterwards provided by statute that the Court might order a sale for the purpose of partition, instead of an actual partition, when the interest of the parties would be promoted thereby. And it is provided that a widow entitled to dower may join in the application and receive her third in money or a corresponding part absolutely, in lieu of a life estate. This leaves the election to the widow, whether to enjoy her dower specifically by metes and bounds as a home or to take compensation in money.

In regard to a tenant by the curtesy or to one entitled to a homestead, there is no statutory provision for the plain reason that it was presumed that persons entitled to these estates would prefer to have "a house and home," and would not elect to take compensation in money. For instance, one entitled to a life estate as tenant by the curtesy or as a homestead could hardly be supposed to be willing to let his estate be sold and take compensation in its money value. Leave your house and home and take the interest on $1,000 during life, is a proposition that would be rejected by every tenant by the curtesy and by every person entitled to a homestead.

The question is, can the Court compel them to agree to a sale? The Court had no such power at common law and there is no statute which confers it.

There is no error.

PER CURIAM. Judgment affirmed.