#### JOSEPH F. TAYLOE v. Mrs. ANNIE H. CARROW and Husband et al.

(Filed 13 September, 1911.)

1. Tenants in Common — Partition—Appeal from Clerk — Judge’s Discretion — Appeal and Error.

In proceedings under a petition for partition of lands, tbe action of tbe Judge in setting aside the report of the clerk for a partial division and ordering a sale, for the reason that he has found as a fact that the land cannot be fairly divided, is within his discretion, and is not reviewable on appeal.

2. Partition — Tenants in Common — Actual Partition — Sale.

Prima faeie, tenants in common are entitled to actual partition; but only when such partition can be made without injury to any of the parties. Revisal, 2512.

3. Tenants in Common — Partition—interlocutory Orders — Final Decree.

Until the decree of confirmation by tbe judge, the proceedings for the partition of lands are not final, but interlocutory, and rest in his discretion.

4. Same — Rereference.

Before the decree of confirmation, orders made by the judge in proceedings for partition, as to a part sale and part actual division, allotting a certain part of the lands to one of the peti*7tioners, are interlocutory, and it is within his discretion thereafter and before entering the final order of confirmation to refer the matter to new commissioners under an order to sell the land for a division of the proceeds, having found that his former-order would not have been fair to all the parties interested.

5. Partition — Appeal from Clerk — Different Judges — interlocutory Orders.

When appeals from the clerk in proceedings for partition are made successively to different judges, a judge before whom comes a later appeal may set aside or modify a former interlocutory order, it not being required for that purpose that the same judge should have passed upon the former appeals.

Appeal by plaintiffs from Ward, J., at March Term, 1911, of Beaufort.

The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.

W. C. Rodman, Small, McLean & McMullan for petitioner.

Nicholson & Daniel for appellant.

Martin & Critcher for defendant Godwin.

Clark, C. J.'

This is a petition for sale of land for partition, the plaintiff alleging that the land was not susceptible of actual partition. Some of the defendants answered, asking that the land be actually divided. The clerk made an order directing actual partition and appointing commissioners. To this order the petitioner and certain of the defendants excepted. • The commissioners attempted to make actual partition, and filed a report, but two of them reported further that owing to the shape, area, and topography of the land the best interest of all the parties would be subserved by a sale. This the clerk overruled and confirmed the report. Upon appeal to the judge the partition was set aside and the commissioners were directed to set apart and allot one-seventh in value of the land to the defendant, Annie Oarrow (who alone insisted on actual partition), and ordered a sale of the remainder for partition. The second set of commissioners made their report, which was confirmed by the clerk; but on appeal the judge set aside the report of the commissioners and directed that the entire property be sold *8for partition, finding as a fact tbat tbis property could not be fairly divided and tbat a sale would best subserve tbe interests of all parties.

In Ledbetter v. Pinner, 120 N. C., 455, tbe Court said: “Tbe only controverted fact arising- on tbe pleadings was as to tbe advisability of a sale for partition or an actual partition. Tbis was not an issue of fact, but a question of fact for tbe decision of the clerk in tbe first instance, subject to review by tbe judge on appeal.”

Tbis action of tbe judge in setting aside tbe report and ordering a sale is not reviewable unless there is an error of law committed. In Simmons v. Foscue, 81 N. C., 86, tbe Court said: “Of tbe force and effect of tbe evidence in inducing tbe exercise of tbat reasonable discretion reposed by law in tbe judge when called on to confirm tbe action of tbe commissioners, be alone must determine, and if no error in law was committed we cannot reverse bis decision.” Tbis has been cited and approved, Trull v. Rice, 92 N. C., 572; McMillan v. McMillan, 123 N. C., 577.

Tbe appellant, Annie Carrow, insists tbat error in law was committed in tbat tbe judge having decreed actual allotment to her of one-seventb and a sale of tbe remainder, tbe matter was res judicata, and be could not, upon setting aside the report, decree a sale of tbe part allotted to lier. Rev., 2516, authorizes tbe judge to decree actual partition of a part of the land and a sale of tbe remainder, but bis decree to tbat effect is interlocutory, as much so as tbe decree for tbe sale of tbe remainder. Until tbe confirmation of tbe report, tbe whole matter rests in tbe judgment of tbe clerk, subject to review by the judge, whose action is binding on us unless an error of law has been committed. A judge might well find on tbe coming in of a report tbat tbe clerk’s former order directing actual partition was impracticable, as tbe judge found here upon tbe report of two of the commissioners, and direct, as bis Honor has done, tbat tbe report be set aside and actual partition made of part and a sale made for partition of tbe rest. For tbe same reason be might find, as be has done on tbe second report coming in, tbat tbe *9evidence showed that the actual allotment of a part of the land to one tenant in common was impracticable, or that it damaged the sale of the remainder of the tract. He has so found as a fact in the case, and thereupon it was eminently proper that he should set aside the report and with it the former order directing the allotment to Annie Carrow, and decree a sale of the whole tract at an upset price, both in parcels and as a whole (as he has done here), and on coming in of the report of this sale it will be competent for the judge, upon appeal from the' clerk, to confirm said sale or set aside the report and direct actual or partial partition,.or a resale, as he may then find to be to the interest of the parties. Such orders, being interlocutory, rest in the discretion of the court.

Prima facie, tenants in common are entitled to actual partition, but only when such partition can be made without injury to any of the parties: Rev., 2512; Gillespie v. Allison, 115 N. C., 548. In Skinner v. Carter, 108 N. C., 109, it is said that the judge, “having the power to set aside the report, he might also make any order, that could formerly have been made either by the clerk or the judge under such circumstances.” The judge in the beginning was vested with the power to decree actual partition or a partial partition or a sale for partition. Having set aside the report, as he had power to do, the matter was then open to him, as res nova. Being better advised by the report or further evidence, he could not only refer it to new commissioners, but he could direct actual partition of the whole tract, or a sale of the whole or a partition of part and a sale of the remainder, just as he could originally. No title vested until the decree of confirmation upon the final report of the commissioners. Until the decree of confirmation the proceedings are not final, but interlocutory, and rest in the discretion of the court, even though the purchase money has been paid and the purchaser ha.s taken possession of the premises. Knapp on Partition, 335. On the other hand, even when there has been a decree of confirmation, title will not be executed until the purchase money has been paid. Burgin v. Burgin, 82 N. C., 197; White, ex parte, ib., 378.

*10It makes no difference that tbe appeals may go up to different judges. Tbe appeals are all from tbe clerk to tbe judge of tbe Superior Court. Tbe former judgments of tbe judge, being interlocutory, are subject to be set aside or modified by bim or bis successors.

Tbe minutóse of tbe controverted details as to tbe successive appeals from tbe clerk to the judge need not be discussed by us. Tbe judge below correctly held that they were immaterial irregularities at tbe most.

Affirmed.