The ruling of his Honor, that the denial in the answer of the allegation in the petition, that the petitioner is a tenant in common with the defendants, and is seized in fee, raises an issue of fact, would not be questioned but for certain expressions in several of our decisions which, considered without reference to the facts in the cases and the history of proceedings in partition, would render it doubtful.
The first of these cases is Purvis v. Wilson, 50 N.C. 23, in whichPearson, C. J., says that the plea by the defendant in partition of nontenant insimul is the plea of sole seizin, and that this raises the general issue; and this is followed by Wright v. McCormick, 69 N.C. 15, in which the same judge says: "The plea of `sole seizin' must (150) be put in before the order for partition is made, otherwise it is waived, and the parties are, for the purpose of the proceeding, taken to be seized as tenants in common."
In another case, Honeycutt v. Brooks, 116 N.C. 792, Furches, J., says: "Plaintiffs allege that they are tenants in common with defendants in said lands. The said defendants answer and deny that plaintiffs are the owners of the lands mentioned in their complaint, and plead `non tenent insimul' (sole seizin in themselves), which is the `general issue' in a proceeding for partition"; and in Graves v. Barrett, 126 N.C. 269, the present ChiefJustice makes substantially the same statement: "But in a petition, title is not in issue, unless the defendants put it in issue by pleading `sole seizin.'"
In Purvis v. Wilson and in Honeycutt v. Brooks sole seizin was pleaded, and the question of the effect of the denial of the allegation that the petitioner and the defendant were tenants in common was not raised.
In Wright v. McCormick it does not appear that the defendant denied *Page 126 the tenancy in common, and in Graves v. Barrett there was no plea of sole seizin, and the Court approved the proceeding in which issues were submitted to the jury upon a denial of the cotenancy.
It appears, therefore, that the ruling of his Honor is not in conflict with the decisions relied on by the petitioner, and the appearance of conflict doubtless arose by treating the plea of non tenent insimul as synonymous with the plea of sole seizin, because it is more comprehensive and includes it.
In 2 Sellon's Practice, 314, the author says, speaking of pleadings in partition: "To the declaration there can be no plea in abatement, since the statute 8 9 W. 3 c. 31 f. 3. Nor shall the writ abate by the death of the defendant. And if he pleads in bar, he can plead no other plea than nontenent insimul, for every other plea in bar is tantamount to non tenentinsimul. Upon which plea issue may be taken, and the parties proceed to trial as in other cases."
The definition of the plea non tenent insimul, as given by (151) Bouvier, is, "A plea to an action in partition, by which the defendant denies that he holds the property which is the subject of the suit, together with the complainant or plaintiff," and by Black: "A plea to an action in partition, by which the defendant denies that he and the plaintiff are joint tenants of the estate in question."
The plea is in substance a denial of the tenancy in common, as appears from the following form: "And the said C. D., by G. H., his attorney, comes and says that he did not hold the premises in said petition of the said A. B. set forth, together with the said A. B. at the time of the commencement of the proceedings in this cause, as alleged in said petition of the said A. B.; and of this he, the said C. D., puts himself upon the country." Tillinghast Forms, 625.
It would seem, therefore, that the denial of the cotenancy, while not technically the plea of non tenent insimul, is substantially the same, and at this day, when substance is not sacrificed to form, would be held to permit the same defenses under it if the question was to be determined at common law.
The construction of the pleadings is not, however, controlled by the rules of the common law, but by the Code system, and as was said in Stokesv. Taylor, 104 N.C. 395, and approved in Brewer v. Wynne, 154 N.C. 471: "The rule of the common law was that every pleading should be construed strongly against the pleader. The Code system is just the reverse. `In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.'" *Page 127
The difference between the two is well stated, with reference to the plea under consideration, in 30 Cyc., 225, in an article by Mr. Freeman, the editor of the American Decisions and the American State Reports and the author of a treatise on Cotenancy and Partition: "The plea ofnon tenent insimul constituted the general issue in actions of partition at common law. Every allowable plea which could be interposed amounted to non tenent insimul. This plea put in issue all the material allegations of the complaint, and seems to have been so adequate as to authorize defendant to place in evidence every conceivable fact which, if proved, would prevent plaintiff's recovery. Under the (152) Code rule of pleading the general issue is made by a general denial. Therefore such a denial or any form, either of allegation or denial, which necessarily negatives the idea that plaintiff and defendant were cotenants at the commencement of the action must be sufficient where the only object of the pleader is to defeat plaintiff's claim to partition, and anything less than this must be insufficient."
The rules of civil procedure are applicable to special proceedings (Revisal, sec. 710) and one of these rules is that an issue arises on the pleadings when a material fact is maintained by one party and controverted by the other. Revisal, sec. 544.
The materiality of the allegation that the petitioner is a tenant in common with the defendant is apparent, as the right to institute the proceeding for partition is conferred only on tenants in common (Revisal, sec. 2487), and it is upon this ground that judgments in partition are held to estop as to the title. Armfield v. Moore, 44 N.C. 164; Carter v.White, 134 N.C. 474; Buchanan v. Harrington, 152 N.C. 334.
In the last case, Justice Manning says: "We apprehend, however, that whenever plaintiff alleges himself to be the owner in fee, or of any specified estate, or avers any other ultimate fact under which he is entitled to relief, it becomes the duty of the defendant either to concede or take issue with the allegation or averment, and that the judgment in the action will be as conclusive as it would upon a like issue in any other action."
We therefore conclude that his Honor held correctly that the denial of the cotenancy raised an issue of fact for the determination of the jury.
We are also of opinion that his Honor had the power to permit the answer to be filed, and that the exercise of his discretion is not reviewable.Faison v. Williams, 121 N.C. 152.
In this case the Court says: "It is unnecessary to consider whether the judge could reverse the action of the clerk in refusing leave to amend, for the act of 1887, ch. 276 (amending section 255 of The Code), *Page 128 provides that whenever a cause is sent up to the judge for any groundwhatever, the `judge shall have jurisdiction,' and may either fully determine the cause himself or make orders therein and send it (153) back to be proceeded in by the clerk."
Affirmed.
Cited: Pinnell v. Burroughs, 168 N.C. 318.