#### R. E. BLAND and Wife, LOUISA BLAND, and JESSE WALLACE and Wife, LIZZIE WALLACE, v. Q. A. FAULKNER.

(Filed 26 October, 1927.)

1. Partition — Tenants in Common — Exceptions—Deeds and Conveyances —Estoppel.

Where the plaintiffs in proceedings to partition lands among tenants in common, except to the report of the commissioners appointed by the court raising an issue as to whether the lands were capable of an actual division or should be sold and the proceeds divided, the plaintiffs are estopped by a deed from one of them to the other conveying a part of the land allotted, from insisting upon their exceptions.

2. Same — Interlocutory Orders — Questions of Law — Courts—Apxieal and Error.

The question of whether the commissioners to sell lands in partition had correctly divided them, and also whether the lands were capable of an actual division, are matters of law for the court, upon facts found by him; and where the presiding judge has ordered an issue to be submitted to a jury at a subsequent term to ascertain the true dividing line between certain of the tenants, it is only an interlocutory order which may be disregarded by the judge holding the subsequent term as a matter still within the breast of the court, and does not involve the question as to whether an appeal will lie from one Superior Court judge to another.

3. Same — Judgments—Modification—Rescission of Order.

Interlocutory orders not finally determining or adjudicating the rights of the parties, are under the control of the court and may be amended, modified, changed or rescinded upon good cause shown.

Appeal by plaintiffs, E. E. Bland and wife, from Sinclair, J., at February'Term, 1927, of LeNOIR.

Affirmed.

This is a proceeding for partition of land situate in Lenoir County. Summons was issued on 8 January, 1919. The report of the commissioners making the partition was filed in the office of the clerk of the Superior Court on 10 March, 1919. Exceptions were filed to said report by plaintiffs on 19 March, 1919. On 24 March, 1925, an order was made by the clerk setting aside the report. Upon appeal from this order, heard at February Term, 1927, the order of the clerk was reversed, the exceptions overruled, and the report of the commissioners confirmed.

During the pendency of the proceedings, to wit, on 2 December, 1919, plaintiffs, Jesse Wallace and wife, conveyed by deed to their co-plaintiffs, E. E. Bland and wife, a portion of the share of said land allotted to them in the report of the commissioners, then on file in the clerk’s office, awaiting his action upon the exceptions thereto filed by plaintiffs. The deed conveying the land contains the following words *428with reference to tbe description: “Tbe above 41-acre tract is to be surveyed and cut off from tbe Jesse Wallace tract of land and is to be surveyed after tbe final settlement of a suit now pending in Lenoir County, entitled ‘Jesse Wallace and wife and R. E. Bland and wife v. Q. A. Faulkner and wife.’ ” Tbe suit therein referred to is tbis special pro- • ceeding for partition.

At tbe time of tbe conveyance of said land R. E. Bland and wife executed tbeir notes for part of tbe purchase price thereof, and conveyed said land to Jesse Wallace by mortgage deed to secure tbe payment of said notes. R. E. Bland and wife went into possession of said land under said deed soon after its date and have continued in such possession. On 24 March, 1925, Jesse Wallace and wife filed in tbis proceeding a paper-writing, called by them a Special Plea, wherein they withdrew tbeir exceptions to tbe report of tbe commissioners and prayed that no further action be taken with reference to said exceptions. They alleged that tbeir co-plaintiffs, R. E. Bland and wife, were estopped by tbeir acceptance of tbe deed and tbeir execution of tbe mortgage from further insisting upon tbeir exceptions.

Upon tbe bearing of tbe appeal from tbe order of tbe clerk, setting aside tbe report of tbe commissioners on 24 March, 1925, at February Term, 1921, tbe court submitted an issue to tbe jury, which was answered as follows:

“What is tbe true dividing line between tbe lands of tbe parties hereto as tenants in common and tbe defendant, Q. A. Faulkner, individually? Answer: X to Z.”

From judgment overruling all tbe exceptions to tbe report of tbe commissioners, confirming said report, and directing that tbe true dividing line as found by tbe jury be located by a surveyor, plaintiffs, R. E. Bland and wife, appealed to tbe Supreme Court.

Bouse & Bouse for plaintiffs B. E. Bland and wife.

Oowper, Whitalcer <& Allen for plaintiffs J esse Wallace and wife.

F. E. Wallace, C. W. Fridgen, Jr., and Ward & Ward for defendant Q. A. Faulicner.

CoNNOR, J.

Tbe controversy in tbis proceeding between tbe plaintiffs, on tbe one part, and tbe defendant on tbe other, originally, was as to whether there should be an actual partition of tbe land owned by them as tenants in common or a sale for division. Tbe commissioners appointed by tbe clerk pursuant to bis order made an actual partition, allotting to tbe parties to tbe proceeding tbeir shares in said land, by metes and bounds, in severalty. Exceptions were filed to tbeir report *429by tbe plaintiffs. Pending tbe bearing of these exceptions, and before any action by tbe court upon tbe report, plaintiffs, Jesse Wallace and bis wife, wbo owned an undivided 4/7 interest in tbe land conveyed to tbeir coplaintiffs, R. E. Bland and wife, wbo owned an undivided 1/7 interest, a portion of tbe share allotted to them in tbe report of tbe commissioners. Tbe said report was thereafter set aside by tbe clerk, wbo in effect ordered that tbe land be sold for division. Tbe appeal from tbe order of tbe clerk came on for bearing before Barnhill, J., at December Term, 1925, of tbe Superior Court of Lenoir County. Judge Barnhill, upon consideration of tbe exceptions filed by plaintiffs to tbe report of tbe commissioners, made an order directing that certain issues, or more properly speaking, certain questions of fact, should be submitted to a jury at a subsequent term of said court. He thereupon continued tbe bearing. When tbe proceeding came on for bearing before Sinclair, J., at February Term, 1927, Judge Sinclair was of tbe opinion that upon tbe then state of tbe record, it was not necessary to submit to a jury tbe issues as directed by Judge Barnhill at tbe previous term. He declined to submit said issues, but did submit tbe issue as set out in tbe record. Plaintiffs, R. E. Bland and wife, excepted to tbe action of Judge Sinclair in refusing to submit tbe issues as directed by Judge Barnhill, and assign same as error.

This assignment of error is not sustained. Tbe order of Judge Barn-bill was merely interlocutory. Tbe issues which be directed to be submitted to a jury were not raised by tbe pleadings, and involved matters which could have been and are usually determined by tbe judge. His order did not determine or adjudicate any rights of tbe parties. Interlocutory orders, not finally determining or adjudicating rights of tbe parties, are always under tbe control of tbe court, and upon good cause shown they can be amended, modified, changed or rescinded as tbe court may think proper. Maxwell v. Blair, 95 N. C., 318, and cases cited. Tbe principle that no appeal lies from one judge of tbe Superior Court to another (see Dockery v. Fairbanks-Morse Company, 172 N. C., 529) has no application to a mere interlocutory order. The fact that Judge Barnhill, under our rotating system, was succeeded by Judge Sinclair as tbe judge of tbe Superior Court bolding tbe courts of Lenoir County, did not deprive tbe court of power to modify or rescind tbe order. No rights of appellants have been affected by Judge Sinclair’s action which they assign as error.

Tbe exceptions to tbe report of tbe commissioners were filed by plaintiffs jointly on 19 March, 1919. They thereby joined in tbe contention that tbe land was not susceptible of actual partition, but should be sold for division. Plaintiffs, R. E. Bland and wife, further excepted for *430that the share allotted to them by the commissioners was not worth one-seventh of the value of the entire tract, their undivided interest being one-seventh. Subsequent to the filing of the joint exceptions, plaintiffs, Jesse Wallace and wife,'withdrew their exceptions and at the hearing did not resist the confirmation of the report of the commissioners. The court was of opinion that plaintiffs, both Jesse C. Wallace and wife and R. E. Bland and wife, are estopped from relying upon their exceptions by the execution and acceptance of the deed for a portion of the land allotted to Jesse 0. Wallace and wife by the commissioners. In this there is no error.

The execution and acceptance of the deed was a ratification of the report. Neither plaintiff could further contend that the land should be sold for division, nor should R. E. Bland and wife be heard to contend further that the report should be set aside with respect to the land allotted to them as their share.

The contention of appellants that subsequent to the execution and acceptance of the deed and mortgage, there was an agreement between them and Jesse Wallace and his wife that the transaction resulting in the conveyance of the forty-one acres of land to appellants should be rescinded, is immaterial to the matters involved in this proceeding. There was no error in the refusal to hear or consider evidence with respect to the alleged agreement.

The suggestion that the controversy between the plaintiffs, which is the subject-matter of this appeal, has arisen because of the decline in land values since 1920, seems to have support. However this may be, we find no error in the record, and the judgment is

Affirmed.