#### VIRGINIA-CAROLINA POWER COMPANY v. JOB TAYLOR.

(Filed 8 October, 1924.)

Partition — Title — Chain of Titled-Evidence — Statutes—Instructions— Appeal and Error.

Where proceedings for partition of lands covered by a nonnavigable stream of water have been made under the provisions of chapter 85, Revised Statutes 1837, before amended, and applicable at the time, it was by the terms of the statute binding upon the parties, and where a party litigant has shown the land to have been embraced under the partition proceedings, it is error for the trial court to hold or instruct the jury that the partition proceedings could not be considered as a link in the chain of claimant’s title unless the court had confirmed the report of the commissioners, or the parties to these proceedings had confirmed them by their subsequent conduct that would amount to their ratification.

Appeal by plaintiff from Daniels, J., at Spring Term, 1924, of N ORTHAMPTON.

The plaintiff seeks to recover of the defendant a tract of land situate in Northampton County described in the complaint by metes and bounds upon its allegation that it is the owner and entitled to the possession of the said tract of land; this allegation is denied by the defendant.

The first issue submitted to the jury, with the answer thereto, is as follows: “Is the plaintiff the owner and entitled to the possession of the tract of land described in the complaint? Answer: No.’ ”

Under the instructions of the Court the jury did not answer the other issues submitted. All the exceptions noted during the trial upon which plaintiff bases its assignments of error are to the evidence and instructions applicable to the first issue. Plaintiff contends that the *352evidence tends to show tbat it is tbe owner of tbe land described in the-complaint by a chain of title connecting it witb a grant from tbe State' of North Carolina to William Eaton for a tract of land situate oni Boanoke Biver in Northampton County containing 226 acres described: in tbe said grant by metes and bounds. This grant was recorded ins Book 8 at page 248, Northampton Begistry on 10 December, 1790.

Plaintiff offered as a link in bis chain of title tbe original petition,, order for partition, report of commissioners, and order witb respect to> tbe said report, in a partition proceeding between tbe devisees of W. W. Wilkins and William Miles filed at June Term, 1847 of tbe Court of Pleas and Quarter Sessions of Northampton County. Tbe petitioners,. W. W. Wilkins, Edmund Wilkins, James C. Bruce and wife, William E. Broadnax and Sallie I. Broadnax and William Miles showed to the-court tbat they are tenants in common of certain lands covered by water-in Eaton’s Falls in Boanoke Biver described in tbe petition by metes- and bounds containing 226 acres; tbat William Miles is entitled to one-half of tbe said lands and tbat tbe other petitioners are entitled to the-remaining one-half as tenants in common; all of tbe petitioners pray tbat William Miles’ one-half of tbe said land be allotted to him in severalty and tbat tbe other one-half be allotted to tbe other petitioners-in common. Commissioners were appointed by tbe court pursuant to-said petition and at September Term, 1847, of tbe said court tbe said commissioners reported tbat pursuant to tbe order of tbe court they bad allotted to William Miles all of tbat part of tbe said land lying to the-north of a line defined and described in tbe said report and tbat they bad allotted to tbe other petitioners as tenants in common, all of the-said land lying to tbe south of said line. Thereupon an order was made-in words as follows:

“NORTHAMPTON County — September Term, 1847.

This division of land was returned in open court by tbe commissioners who made it and ordered tbat tbe same, together witb tbe plat-annexed, be certified and registered. John B. Odom, Teste.

Begistered 6 September, 1847.

Samuel Calvert, Register

This partition proceeding is recorded in Book 32 at page 248, Northampton County Begistry. Tbe plaintiff herein claims under tbe Wilkins, devisees, and contends tbat tbe land allotted to them is tbe same land as tbat described in tbe complaint.

Tbe defendant objected to tbe introduction of tbe said partition proceedings on tbe ground tbat tbe report of tbe commissioners was not *353confirmed. Tbe proceedings, however, was admitted by his Honor who reserved his ruling upon the defendant’s objection. Evidence was subsequently offered which the plaintiff contended established ratification of the said proceeding by William Miles and those under whom he claimed, including the defendant. The defendant, however, contended that upon all the evidence the jury should find that there was no ratification of the said partition.

In his charge to the jury his Honor instructed them as follows: “I want to say to you, however, gentlemen of the jury, that the report of the commissioners in the division of the Wilkins lands between the Wilkins heirs and William Miles, has never been confirmed so far as the record discloses and therefore it would not be a link in the chain of title of plaintiff unless the evidence should satisfy you by its greater weight, that it was acquiesced in by William Miles and his successors in title.”

To this instruction plaintiff excepted and this is plaintiff’s exception No. 51.

There were other and further instructions to the jury based upon his Honor’s holding that the report of the commissioners had not been confirmed and that the said partition proceeding should be disregarded by the jury unless they should find by the greater weight of the evidence that William Miles and those who claimed under him had ratified the same by acquiescence. To each and all of these instructions the plaintiff excepted and assigned same as errors.

In view of the disposition of this appeal it becomes unnecessary to set out the other exceptions and assignments of error made by the plaintiff.

George G. Green for plaintiff, appellant.

Travis & Travis, Daniel & Daniel and Burgwyn & Norfleet for defendant, appellee.

Connor, J.

The controversy between the parties to this action involves the title to a parcel or tract of land in Northampton County over which the Roanoke River, a nonnavigable stream, flows, the said land lying and being in the bed of said river.

The plaintiff offered evidence which he contends established a connected chain of title beginning with a grant by the State of North Carolina in 1790 and continued to the deed of its grantor. As one of the links in such chain of title he offered the record of a special proceeding for partition in the Court of Pleas and Quarter Sessions of Northampton County begun at the June Term, 1847 and concluded at the September Term, 1847, of said court. His Honor was of the opinion *354and so instructed tbe jury, that tbe said proceeding was not valid as a link in tbe chain of title for tbe reason tbat tbe report of tbe commissioners bad not been confirmed.

This proceeding was conducted in accordance with tbe provisions of chapter 85 of tbe Revised Statutes of North Carolina 1837. Section 1 of said chapter, after providing for tbe appointment of tbe commissioners to make tbe partition in accordance with tbe prayer of tbe petition, provides further: “Tbe said commissioners, or a majority of them, are required as soon as they can to make a return of their proceeding and appropriations under their bands and seals, ascertaining with precision tbe different tracts or parcels of land, lots or bouses with actual surveys of tbe same when necessary, to tbe court by which they were appointed, which return and appropriation shall be certified by tbe clerk and enrolled in bis office and registered in tbe office of tbe county where such lands, lots or bouses respectively lie; and such return and appropriation shall be binding and valid among and between tbe claimants, their heirs and assigns forever.”

This statute which was applicable to the proceeding bad in 1847, was not called to tbe attention of bis Honor; we are of tbe opinion that bis Honor was in error in bolding tbat tbe said proceeding was not valid for tbe reason tbat there was no formal order or decree confirming tbe report of tbe commissioners.

An inspection of tbe proceeding shows tbat the report of tbe commissioners appointed in this proceeding was returned into open court, and tbat tbe said return, together with tbe plat annexed, was certified by tbe clerk and enrolled in accordance with tbe provisions of tbe statute then in force. By virtue of such statute, such return and appropriation when so certified and registered, became “binding and valid among and between tbe petitioners, their heirs and assigns forever.”

It is interesting to note tbat this section 1 of chapter 85, as tbe same appears in tbe Revised Code of North Carolina 1854, was amended by requiring tbat tbe report of tbe commissioners should be confirmed and then enrolled and certified in accordance with tbe provisions of tbe foregoing section. See C. S., 3230, 1.

Tbe plaintiff’s assignment of error for tbat bis Honor held tbat tbe report of tbe commissioners bad not been confirmed and tbat therefore tbe proceeding was not valid as a link in plaintiff’s chain of title, is sustained and therefore there must be a

New trial.