Opinion
(June Term, 1877.)
Practice — Action to Recover Land — Partition.
Where in an action for the recovery of land the plaintiff showed title under proper proceedings in partition, and the defendant admitted possession: Held, that plaintiff was entitled to recover.
ACTION to recover possession of land, tried at Spring Term, 1877, of CUMBERLAND, before McKoy, J.
MacRae Broadfoot and N.W. Ray for plaintiffs.
Guthrie Carr, B. Fuller, and McKay for defendants.
The plaintiffs read in evidence a petition, order of partition, appointment of commissioners, and an order confirming their report in the case of the present plaintiffs against Duncan McCormick, the devisor of the present defendants, and under whom the defendants claim the land in dispute. See 69 N.C. 14. The description of the land in the complaint was the same as in said petition, decree, and report of commissioners.
The defendants admitted that they were in possession of the (159) land at the time the action was brought, and the plaintiffs demanded possession of the same upon the ground that it was allotted to them in the said proceeding for partition. His Honor gave judgment for the plaintiffs, and the defendants appealed.
The feme plaintiff and the devisor of the defendants were tenants in common of a tract of land; and, under proper proceedings had in court, partition of the land was made between them, allotting to each a share in severalty. An appeal was taken to this Court upon the objection by the defendants that the commissioners had divided the wrong tract of land, but the description in the complaint and in the report were identical, and the objection was held to be "captious and frivolous." Wright v. McCormick, 69 N.C. 14.
The devisor of the defendants died before the final confirmation of the report of the commissioners, and the defendants were made parties defendant, and the report of partition was confirmed and a proper decree made.
The complaint states that since that time the defendants have taken possession of the land allotted to plaintiffs. The answer denies everything, and claims title and admits possession, "sole seizin." Seizin in deed, as this must be taken to be, is possession. The plaintiffs' proof of title — the record of partition before stated — was complete, and the defendants' possession was admitted. The plaintiffs were clearly entitled to recover.
PER CURIAM. Affirmed.
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