Appeal by plaintiffs from Fountain, Judge. Judgment entered 3 march 1981 in Superior Court, Northampton County. Heard in the Court of Appeals 10 March 1982.
Vaughn, Judge. Judge Clark and Judge Whichard concur.
At issue is the construction of G.S. 46-25 and its applicability to the present cause. G.S. 46-25 states the following:
"When two or more persons own, as tenants in common, . . . a tract of land, either in possession, or in remainder or reversion, subject to a life estate, or where one or more persons own a remainder or reversionary interest in a tract of land, subject to a life estate, then in any such case in which there is standing timber upon any such land, a sale of said timber trees, separate from the land, may be had upon the petition of one or more of said owners, or the life tenant, for partition among the owners thereof, including the life tenant, upon such terms as the court may order, and under like proceedings as are now prescribed by law for the sale of land for partition: Provided, that when the land is subject to a life estate, the life tenant shall be made a party to the proceedings, and shall be entitled to receive his portion of the net proceeds of sales. . . . Provided further, that prior to a judgment allowing a life tenant to sell the timber there must
be a finding that the cutting is in keeping with good husbandry and that no substantial injury will be done to the remainder interest."
The Superior Court judge was of the opinion that G.S. 46-25 does not authorize a sale of standing timber in the present situation. There appears to be two reasons for that opinion. First, he concludes that the statute only authorizes the sale of timber from land in which the interest of all parties is subject to a life estate. In the present cause, the one-half undivided interest of Dewey Bridgers is not subject to an outstanding life estate. Second, he seems to conclude that where an actual division of the real estate is possible, a sale of standing timber cannot be had. We conclude that the judge erred in his construction of G.S. 46-25.
G.S. 46-25 changes the common law by permitting a life tenant to petition for a sale of timber for profit. Piland v. Piland, 24 N.C. App. 653, 211 S.E.2d 844, cert. denied, 286 N.C. 723, 213 S.E.2d 723 (1975). The statute is not limited in application, however, to only those tracts of land in which interests are subject to a life estate. When the statute speaks of tenants in common "either in possession, or in remainder or reversion, subject to a life estate," the phrase "subject to a life estate" modifies only the words "remainder" and "reversion." Tenants in common who presently possess a tract of land may also petition for a sale of timber. See Chandler v. Cameron, 229 N.C. 62, 47 S.E.2d 528 (1948).
We further conclude that the statute does not require all cotenants to have the same type interest in the land. A cotenant in remainder may petition for a sale of standing timber from land in which the other cotenant has a present possessory interest. Such an interpretation is consistent with G.S. 46-3, which authorizes the partition of real estate upon a cotenant's petition without regard to the possessory interests of his cotenants.
We, therefore, hold that cotenants, Gene Bridgers, June Warren, Anne Howell, and Walter Bridgers, properly petitioned under G.S. 46-25 for a sale of the land's standing timber. Their interest is subject to a life estate in Beatrice Bridgers. Entitled to be made a party to the proceeding, she chose to join the remaindermen in their petition.
The next question is whether the petitioners were required to show that an equitable partition of the tracts was not possible
before the court could authorize a sale of the timber apart from the realty. We ...