#### SOUTHERN STATE BANK v. BETTIE LEVERETTE, PAUL LEVERETTE, MRS. L. A. SUMNER.

(Filed 21 May, 1924.)

1. Tenants in Common — Courts—Jurisdiction—Title—Clerks of Court.

While the title to lands is not involved in proceedings among tenants in common to partition lands unless put in issue, the effect of the clerk’s order for division is to vest the title in each tenant in the lands apportioned to him; and after the apportionment of the lands have been made, in proceedings for partition among tenants in common before the clerk, without appeal, a lease by one of the tenants can only affect that portion which has been allotted to him.

2. game — Writ of Assistance — Equity—Writ of Possession — Petition and Affidavit.

A writ of assistance to put the owner of lands in possession which is wrongfully being withheld from him, contrary to the judgment of the court rendered in the proceedings, is one cognizable only in a court of equity and not within that of the clerk of the court in proceedings to par*744tition lands among tenants in common; but where, after the division of the lands has been finally made, without appeal, he may issue a writ of possession to that effect; and where it may be seen from the substance of his petition and affidavit that the legal remedy is applicable, this writ may be issued, though therein spoken, if as a writ of assistance, the effect being practically the same in both instances.

3. Same — Appeal—Derivative Jurisdiction — Constitutional Law.

The clerk of the Superior Court, having no equity jurisdiction, cannot issue a writ of assistance to enforce its order in proceedings to partition lands among tenants in common, when one of the tenants wrongfully withholds possession from another, nor can jurisdiction be conferred on the Superior Court on appeal, the latter having no concurrent or original jurisdiction, under the provisions of the statute (C. S., 637), valid under the provisions of the Constitution of 1S75.

4. Same — Judgments—Estoppel.

In proceedings to partition lands among tenants in common, the adjudication before the clerk of the Superior Court operates as an estoppel as to them and those in privity with them, when no appeal has' been taken. C. S., 3231.

Appeal by L. A. Sumner from Bay, J., at November Term, 1923, of HENDERSON.

T. J. Rickman and Shipman & Justice for plaintiff.

D. L. English and O. K. Bennett for appellant.

Adams, J.

In 1899, M. L. Sumner, seized of a tract of land, died intestate, leaving surviving him the defendant L. A. Sumner as his widow and the defendant Bettie Leverette and seven other children as his heirs at law. After the intestate’s death, the plaintiff acquired the title of all the heirs, except Bettie Leverette, and brought a proceeding before the clerk of the Superior Court for partition, alleging that she and the plaintiff were tenants in common, subject to the widow’s right of dower. Only the widow filed an answer. The clerk transferred the case to the civil docket for the trial of issues alleged to have been raised by the pleadings; but upon appeal Judge Bryson reversed the order of the clerk and remanded the cause for further proceedings. In their brief the appellant’s counsel practically admit that the judge’s order was free from error. When the case was remanded, the clerk decreed the partition of the land and the assignment of dower. The commissioners assigned dower to the widow, and allotted to the'plaintiff and to Bettie Leverette their respective portions of the land described in the petition. The report of the commissioners was approved and confirmed. The appellant did not except to the order appointing the commissioners, or to their report, or to the decree of confirmation. The report was confirmed on 17 May, 1923, and in June the plaintiff applied to the *745clerk for a writ of assistance, based upon an affidavit. An alias notice to tbe appellants to show cause why the writ should not be granted was duly issued, and on 16 August returned served. The appellant entered a special appearance, and moved to dismiss the motion, and, after noting an exception, filed a written answer to the notice. The clerk held that the writ should issue, and his judgment was affirmed on appeal to Judge Ray. The widow excepted, and appealed to this Court.

The appellant admits that the partition of the land and the allotment of dower were not “resisted strenuously,” but she says the writ of assistance is resisted on the ground that the appellant is in possession of all the land described in the petition, under a lease from one of the tenants in common. In her answer to the original petition the appellant alleged that she held a lease, dated 2 August, 1921, from' one of the tenants in common for the land described in the petition, and that it would not expire until 2 August, 1926. If the lease was pleaded in bar of partition it seems not to have been relied on, for it was not referred to again until after the plaintiff had applied for the writ of assistance. Without regard to the alleged right one of several tenants in common to execute a lease upon the common property, we are confronted with uncertainty and indefiniteness as the execution of the lease, as to its contents, as to the name of lessor, and as to the question whether it was executed before or after the plaintiff acquired its title. If the lease was executed by Bettie Leverette, as stated in one of the briefs, would its operation not be confined in any event to her interest? And as her interest has been allotted by metes and bounds, in what way could her -lease to the appellant be effective against the land allotted to the plaintiff ? Besides, on an application for a writ of assistance, the title cannot be adjudicated or the original case reviewed, or the decree modified. Investment Co. v. Tel. Co., 156 N. C., 259; Exum v. Baker, 115 N. C., 242; Roberts v. Dale, 171 N. C., 466; 27 Cyc., 1142 (3); 310 Cyc., 211; 7 R. C. L., 885 (80); 5 C. J., 1322 (13) and 1325 (22).

But the appellant presents a more serious question. She contends that a writ of assistance may be issued only by a court of chancery, and that the clerk who signed the decree had no equitable jurisdiction.

This writ is of remote origin, dating as far back as the reign of Henry VIII. It has been defined as a form of process issued by a court of equity to transfer the possession -of lands, the title or right of possession to which it has previously adjudicated, as a means of enforcing its decree. See authorities cited in Ann. Cas., 1913 D, 1120, note. In Beach’s Modern Equity Practice, Vol. 2, sec. 897, it is said: “Courts of equity have from the earliest times exercised the right to issue a writ of assistance in actions in equity brought for the purpose of determining the rights of the litigants to the title or possession of real estate *746after judgment declaring sucb rights, as well as in cases for the foreclosure or redemption of mortgages. In sucb cases the courts having jurisdiction of the persons and property in controversy have, after determining the rights of the parties litigant to the title or possession of real estate, rightfully assumed the power to enforce their judgments by the writ of assistance to transfer the possession instead of turning the party over to a court of law to recover such possession.”

Mr. Justice Ashe remarked that the writ may be termed an equitable habere facias possessionem, for it is issued only from courts of chancery (Knight v. Houghtalling, 94 N. C., 408); and all the subsequent decisions have treated the writ as issuable only from a court of equity. Coor v. Smith, 107 N. C., 430; Exum v. Baker, 15 N. C., 242; Wagon Co. v. Byrd, 119 N. C., 460; Clarke v. Aldridge, 162 N. C., 326; Lee v. Thornton, 176 N. C., 208.

As the writ can issue only from a court of chancery, the next question is whether the clerk in the proceeding before him had equity jurisdiction.

At common law, coparceners were entitled to partition; upon tenants in common the right was conferred by statute. 2 Bl., 189, 194; Holmes v. Holmes, 55 N. C., 334. But the English courts of chancery also entertained suits for partition, and in this country the several State courts possessing .general equity powers are regarded as having jurisdiction, unless their authority has been abrogated or restricted by statute. 30 Cyc., 170. Prior to 1868, both our courts of equity and our courts of law entertained such suits. Chief Justice Ruffin said: “The right of a tenant in common to partition of a legal estate is as absolute in this Court as it is at law; for the jurisdiction as to actual partition is concurrent in the courts of law and equity, and therefore both courts must adjudicate on the same principle. The only-necessity a tenant in common is under for coming into the court of equity is that which arises from the inconvenience of an actual partition and induces him to apply for a sale.” Donnell v. Mateer, 42 N. C., 94. See, also, Weeks v. Weeks, 40 N. C., 111, 119. But, since 1868, partition has been regulated by statute. Haddock v. Stocks, 167 N. C., 70; C. S., 3213, et seq. The proceeding is now brought before the clerk, but the clerk has not been given the powers of a court of chancery. “He has no equity jurisdiction, and, besides, the statute giving jurisdiction to courts of equity over sales for partition has been repealed by sections 1903 and 1904 of The Code (C. S., 3233, 3241), which confers that jurisdiction upon the Superior Courts, to be exercised by the clerk, who is not vested with any equity powers, except where specially conferred by statute.” Ashe, J., in Bragg v. Lyon, 93 N. C., 151, which is approved in Vance v. Vance, 118 N. C., 865, and in McCauley v. McCauley, 122 N. C., 289.

*747From tbis position tbe Court bas never receded. In a few decisions may be found isolated dicta suggesting tbat tbe clerk and justices of tbe peace may affirmatively exercise tbe functions of a court of equity, but tbe suggestion runs counter to several decisions and is not in accord witb tbe doctrine long since declared by tbe Court and tbence consistently maintained. Tbe provision of tbe Constitution of 1868 prescribing tbe jurisdiction of a clerk of tbe Superior Court was purposely omitted by tbe Convention of 1875, and tbe clerk’s duties now are chiefly sucb as are imposed by statute. Brittain v. Mull, 91 N. C., 499.

Tbe appellant contends, however, tbat by virtue of 0. S., 637, tbe order of tbe judge should be sustained, even if tbe clerk bad no jurisdiction to issue tbe writ. Tbe section is as follows: “Whenever a civil action or special proceeding begun before tbe clerk of a superior court is for any ground whatever sent to tbe Superior Court before tbe judge, tbe judge bas jurisdiction, and it is bis duty, upon tbe request of either party, to proceed to bear and determine all matters in controversy in sucb action, unless it appears to him tbat justice would be more cheaply and speedily administered by sending tbe action back, to be jn'oceeded in before tbe clerk, in which case be may do so.”

There are at least two reasons why, in our opinion, tbe appellant’s position is unsomid. Tbe decisions construing tbis section show that in every “civil action or special proceeding sent” from tbe clerk to tbe judge, there was some element which apparently brought tbe case within tbe jurisdiction of tbe clerk. It is true tbat in Anderson's case, 132 N. C., 244, Montgomery, J., remarked that tbe judge was clothed witb power to determine tbe controversy, although tbe proceeding before tbe clerk was a nullity for tbe reason therein pointed out; but a careful perusal of tbe record discloses tbe fact tbat tbe clerk bad jurisdiction of tbe proceeding before him, and tbe Court simply held tbat tbe judge, on appeal, could retain jurisdiction, although tbe clerk, mistaking bis powers, bad rendered a judgment which was void. And in Stone's case, 176 N. C., 337, tbe action was still pending in tbe Superior Court, and tbe motion before tbe clerk was treated as a motion in tbe original cause. Foreman v. Hough, 98 N. C., 386; Ledbetter v. Pinner, 120 N. C., 456; Faison v. Williams, 121 N. C., 152; Roseman v. Roseman, 127 N. C., 494; Coletrain v. Laughlin, 157 N. C., 282; Luther v. Luther, ibid., 500; Williams v. Dunn, 158 N. C., 399; Baggett v. Jackson, 160 N. C., 26; Mills v. McDaniel, 161 N. C., 113; Thompson v. Rospigliosi, 162 N. C., 146; Ryder v. Oates, 173 N. C., 569; In re Brown, 185 N. C., 399; Hall v. Artis, 186 N. C., 105; In re Ware, ante, 693.

There is another objection to tbe appellant’s position. It may be contended tbat tbe jurisdiction of tbe judge can be maintained on one of two grounds — (1) because tbe clerk bad jurisdiction and tbe juris*748diction of tbe judge was derivative, or (2) because tbe judge would bave bad jurisdiction if tbe application for tbe writ bad been originally lodged, not before tbe clerk, but in tbe Superior Court. From wbat lias been said, it is apparent, we tbink, that tbe clerk, not exercising equity jurisdiction, bad no authority to issue tbe writ, and tbe judge bad no derivative jurisdiction. It is'equally clear tbat tbe judge was without original jurisdiction, because a writ of assistance must issue from tbe court in which tbe final judgment or decree was rendered, and from tbe clerk’s judgment no'appeal was taken. Ann. Cas. 1913 D, 1125, note; Lunstrom v. Branson, 52 L. R. A. (U. S.), 697, and note; 5 C. J., 1323 (15).

But upon a careful examination of tbe record and the authorities, we bave concluded tbat there is another theory upon which tbe judgment may be modified and upheld. Tbe principal distinction between a writ of assistance and a writ of possession is this: While tbe office of each is to put a party entitled thereto into tbe possession of property, tbe former issues from a court of equity and tbe latter from á court of law. 2 R. C. L., 726.

Tbe final decree, signed by tbe clerk in tbe proceeding for partition, dissolved tbe unity of possession; and while it did not pass title, it vested in severalty tbe title to each of tbe tracts or parcels allotted to tbe respective tenants, and operated as an estoppel upon tbe parties to tbe proceeding and those in privity with them. Not having appealed from tbe clerk’s judgment, tbe parties assented to it, and cannot now impeach it. Each tenant is entitled to tbe possession of the share allotted him, and if one tenant withhold such possession, we see no satisfactory reason why tbe clerk should not issue a writ of possession in behalf of tbe legal claimant and dispossess tbe party who, while bound by tbe decree, wrongfully withholds possession. Although tbe plaintiff has applied for a writ of assistance, its affidavit meets tbe requirements of a motion for a habere facias possessionem, or writ of possession; and as tbe original.proceeding was at law, we tbink the plaintiff is entitled to tbe latter writ. It would be unreasonable to require tbe plaintiff to bring a separate action at law to eject an intruder who, as a party to tbe proceeding, is estopped by tbe judgment. C. S., 3231; Weeks v. McPhail, 128 N. C., 129; S. c., 129 N. C., 73; Buchanan v. Harrington, 152 N. C., 333; Weston v. Lumber Co., 162 N. C., 165; Propst v. Caldwell, 172 N. C., 594.

Tbe judgment is modified to tbe extent of authorizing tbe clerk to issue a writ of possession instead of a writ of assistance, commanding tbe proper officer to dispossess tbe appellant and put tbe plaintiff in possession of the. land allotted it by tbe judgment of tbe clerk.

Tbe appellant’s motion to dismiss for want of service is without merit.

Modified and affirmed.