Mecklenburg County NcArchives Court.....M. C. Tate Et Al, W. W. Overman V. 1894
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File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a December 9, 2009, 6:17 pm

Source: North Carolina Reports
Written: 1894

W. W. Overman v. M. C. Tate et al

Partition-Cointingent Remainder-Persons Not in Eses-Trustee

1. Where there are contingent interests to be affected by the proceeding for 
the sale of land for partition it will be decreed if there is some one before 
the Court to represent such interest, it being a general principle that every 
one has a right to enjoy his own in severalty.

2. The interest in land of one co-tenant was conveyed to T and his heirs in 
trust for the sole and separate use of T's wife for life, "and at her death to 
such child or children and the representatives of such as she shall have 
living by the said T and their heirs forever," and in default of such child or 
representative of such living at the death of the wife, then to T and his 
heirs; T died leaving him surviving his wife and two children by her, as well 
as children and grandchildren by a former marriage: Held, in a suit for a sale 
for partition to which all of the persons named together with the trustees are 
parties and ask for the sale, the co-tenant is entitled to have the land sold 
for partition.

Rule upon S. Wittkowsky, purchaser of the land described in the petition for 
partition, to compel him to comply with the terms of the sale, heard first 
before the Clerk of Mecklenburg Superior Court and then by appeal before 
Boykin, J., holding the courts of the Eleventh District, at chambers.

The respondent, S. Wittkowsky, filed an answer to the rule, alleging that the 
title to the land was defective and setting forth the facts upon which he 
based his claim or allegation. The plaintiff deumurred to this answer and the 
Clerk sustained the demurrer, and independently of it held the answer to be 
insufficient and made the rule absolute. This ruling was affirmed by the Judge 
on the appel and then the said respondent, Wittkowsky, excepted and appealed 
to the Supreme Court.

The pertinent facts are stated in the opinion of Chief Justice Shepherd.

Messrs. Walker & Cansler for plaintiff
Mr. Deo. F. Bason for defendant Wittkowsky

[NC Supreme Court
Shepherd, C.J.
Affirmed

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