#### FRANK POWELL and wife MARY, JOHN DUNN and wife SUSAN, SHADE EVANS and wife LOUISA, W. H. EVANS, SIDNEY EVANS, and ELIZABETH PORTER by her next friend, W. H. EVANS, v. L. H. WEATHINGTON and wife ARMITTA.

(Decided February 28, 1899).

Partition of Land — Owelty—The Code, Section 1900.

1. In a proceeding for partition of land, the sum charged' upon one share in favor of another share of less value, for equality in , the division, is a charge in rem, and if not paid subjects the land charged to sale, whether in the hands of the owner, or "of his heirs, to whom it descends cum onere.

2. , Section 1900 of The'Code postpones the sale only in case where , ' ‘ the parties to the proceeding are infants; it does not apply , • ■ .where the share, after division, descends to infant heirs of the owner.

Civil AotioN for recovery of land, tried before Brown, J., at December Term, 1898, of tbe Superior Court of Pitt County.

Both sides claimed under Edmund Evans, deceased. Upon tbe evidence adduced bis Honor intimated that tbe plaintiffs were not entitled to recover.

In deference to tbe opinion of bis Honor, tbe plaintiffs submitted to judgment of nonsuit and appealed.

Tbe evidence fully appears in tbe opinion filed.

Mr. L. J. Moore, for plaintiffs (appellant).

Messrs. Jarvis & Blow, for defendants.

Eaiecloth, C. J.

Action for possession of land, both parties claiming under Edmund Evans, wbo died, and bis lands were partitioned among bis children in 1863. Lot No. 1 was *41assigned to Holland J. Evans and was charged with $75 in favor of Lot No. 2 for equality. Holland J. Evans died in September, 1878, leaving minor children, and they are plaintiffs in this action, suing to recover Lot No. 1. Lot No. 2 was assigned to A. E. Porter and wife, in whose favor was the charge on Lot No. 1. On notice to the children, some being of age, and others minors and femes covert, a judgment was rendered and execution issued November 11, 1878, against Lot No. 1 for the amount charged on it for owelty, in the partition proceedings. This lot, now the subject of controversy, was sold and the defendants claim by mesne conveyances from the purchasers at the sale. .During the trial below these various records and proofs were put in evidence, and his Honor held that the plaintiffs could not recover, and they appealed.

The plaintiffs contend that the lot could not be sold to pay the charge on it, as they or some of them were still infants, according to The Code, section 1900, until they arrive at twenty-one years of age, and therefore the purchasers acquired no title.

This position is a misapplication of section 1900 of The Code. That section operates when the parties to the partition proceeding, or some of them, are infants; it does not apply to the facts in this case. The plaintiffs acquired no title by the decree for partition; they were not parties. Their father, Holland J. Evans, had the title, and plaintiffs acquired it by descent from him. Jones v. Cameron, 81 N. C., 154. When the plaintiffs inherited the lot, charged as above, they took it cum onere. Dobbin v. Rex, 106 N. C., 444.

This conclusion renders it unnecessary to consider some interesting questions presented in the argument.

No error.