{ "id": 11270851, "name": "GEORGE W. VANDERBILT v. FRANCES E. A. ROBERTS et al.", "name_abbreviation": "Vanderbilt v. Roberts", "decision_date": "1913-05-13", "docket_number": "", "first_page": "273", "last_page": "275", "citations": [ { "type": "official", "cite": "162 N.C. 273" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "156 N. C., 8", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "120 N. C., 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658795 ], "opinion_index": 0, "case_paths": [ "/nc/120/0455-01" ] }, { "cite": "118 N. C., 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653925 ], "opinion_index": 0, "case_paths": [ "/nc/118/0746-01" ] } ], "analysis": { "cardinality": 252, "char_count": 3976, "ocr_confidence": 0.481, "pagerank": { "raw": 8.36036363132472e-08, "percentile": 0.48141706331141315 }, "sha256": "676066b9b6bb4c85519791a876c5902512d32f419b8ea04c2e9f6f35ae8c5927", "simhash": "1:c97d28b684f13290", "word_count": 711 }, "last_updated": "2023-07-14T16:55:37.824965+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE W. VANDERBILT v. FRANCES E. A. ROBERTS et al." ], "opinions": [ { "text": "BeowN, J.,\nafter stating the facts: It is needless to consider the question as to whether the joint answer of the heirs of W. T. Johnson raises an issue of fact, except as to whether the land is susceptible of actual partition without serious injury to the many owners. The answer certainly raises no issue of title.\nThese defendants in their exceptions to the referee\u2019s report have pointed out with particularity the only matter upon which they demand a jury trial, viz., as to whether the land can be actually divided. Having specified their issue in their exception to the referee\u2019s report, they are necessarily limited to that. Driller Co. v. Worth, 118 N. C., 746.\nThese defendants are not entitled to have that matter passed on by a jury, because that is not an issue, but only a question of fact to be determined first by the clerk and on appeal by the judge:\nThe clerk heard the cause and' found the facts fully and ordered\u2019a gale. These defendants appealed to the judge. The judge held as a matter of law \u201cthat the answer of these defendants raises issues of fact which should he tried by a jury.\u201d In this he erred.\nNo issues of title or fact are raised except as to the feasibility of dividing the 50-acre tract of land among a large number of owners. This is only a question of fact.\nIn Ledbetter v. Pinner, 120 N. C., 455, it is held: \u201cThe only controverted fact arising on the pleadings was as to the advisability of a sale for partition or an actual partition. Tbis was not an issue of fact, but a question of fact for the decision of the clerk in the first instance, subject to review by the judge on appeal.\u201d Tayloe v. Carrow, 156 N. C., 8, and cases cited.\nThe order of Judge Lyon is set aside and the cause remanded, to be proceeded with in accordance with this opinion. The costs of this appeal will be taxed against the heirs of W. T. Johnson, whose names are set out in their answer.\nBeversed.", "type": "majority", "author": "BeowN, J.," } ], "attorneys": [ "Harkins & Vcm-Winkle, J. S. Merrimon, and Pless & Win-borne for plaintiffs.", "Michael Schenck for the heirs of W. T. Johnson, defendants cmdi appellees." ], "corrections": "", "head_matter": "GEORGE W. VANDERBILT v. FRANCES E. A. ROBERTS et al.\n(Filed 13 May, 1913.)\nPartition \u2014 Clerk of Court \u2014 Reference\u2014Findings\u2014Sale for Division \u2014Exceptions\u2014Questions for Court \u2014 Appeal and Error.\nWliere under a reference ordered By the clerk in proceedings for partition the referee has found that actual partition cannot be made of the lands without serious injustice to the various and numerous owners, an exception thereto by one of the parties does not involve an issue of title; and the question presented being confined to the exception taken, is one to be passed on by the clerk, and by the judge of the Superior Court on appeal; and the judge\u2019s ruling that the matter was one for the jury is held reversible error.\nAppeal by plaintiff from Lyon, J., judgment rendered at chambers, 24 January, 1913; from McDowell.\nPetition for partition of a certain tract of land of 50 acres in Henderson County, removed to and tried in McDowell County because of the disqualification of the clerk of the former county.\nThe clerk referred the cause to a referee, who heard the cause, reported the evidence, and found as a fact that partition cannot be made without serious injustice to the various and numerous owners, and that the interest of all parties will be greatly promoted by a sale of the entire tract for partition.\nThere are a large number of defendants, all of whom consent to a sale, except the heirs of W. T. Johnson, whose names are set out in their joint answer on pages 12 and 13 of the record.\nThese defendants duly excepted to the order of reference. They also excepted to the report of the referee, and demanded a jury trial in these words: \u201cthat the question of\u2019whether the said land can be actually divided or not be submitted to a jury.\u201d\nLyon, judge, granted defendants\u2019 motion and directed that the cause be tried by a jury upon the issues raised, by the pleadings.\nPlaintiff excepts and appeals.\nHarkins & Vcm-Winkle, J. S. Merrimon, and Pless & Win-borne for plaintiffs.\nMichael Schenck for the heirs of W. T. Johnson, defendants cmdi appellees." }, "file_name": "0273-01", "first_page_order": 317, "last_page_order": 319 }