SANDRA J. DONNELL-SMITH and husband, LANGSTON SMITH, Petitioners,
RUSSELL E. MCLEAN, Unmarried, et als.; Respondents.
in the Court of Appeals 31 January 2019.
by respondent Russell E. McLean from judgment entered 20
November 2017 by Judge Richard T. Brown in Harnett County,
No. 11 SP 274 Superior Court.
McKaig and Joseph L. Tart for petitioner-appellees.
Johnson and Johnson, P.A., by Rebecca J. Davidson, for
respondent-appellant Russell E. McLean.
E. McLean ("Respondent") appeals from an order
confirming the commissioners' report dividing partitioned
property among the tenants in common. We affirm the superior
time of her death in 1987, Mettie McLean owned approximately
102 acres in fee simple situate in Harnett County (the
"property"). Petitioners filed a petition for
partition on 28 April 2011, alleging the property was devised
to ten of Mettie's children, in equal shares. Petitioners
requested the clerk to divide the land in kind and to appoint
commissioners to allocate the partitioned property in
accordance with the individual interests.
their amended petition for partition, Petitioners alleged
Mettie had died intestate, as no original will was found,
thus the property was distributed among all eleven children,
in equal shares. Petitioners noted that since Mettie's
death, "some of the undivided interest has been
transferred by deed, devise, and intestate succession to
other tenants in common." Petitioners requested the
clerk of superior court to appoint a commissioner to sell
approximately 1.66 acres of the property lying on the north
side of McDougald Road, which was separate and divided from
the rest of the acreage, and to apply the proceeds from that
sale to the costs of the partition proceedings. Petitioners
also requested for a guardian ad litem to be
appointed to represent unknown potential claimants.
their second amended petition for actual partition and
partition by sale, Petitioners identified several additional
parties to the proceedings and specified sixteen tenants in
common, each owning various shares of the eleven interests.
Petitioners again requested for the clerk to appoint a
commissioner to sell the separate 1.66 acres tract to pay for
the costs of the partition, and to appoint commissioners to
divide the land in kind among the tenants in common.
August 2015, Petitioners filed a motion for sale of the 1.66
acres and a motion for partition in kind of the remaining
98.34 acres. After a hearing, the clerk of superior court
filed a written order on 10 November 2015. The clerk found
Mettie McLean had died intestate, leaving eleven equal shares
of the property, which had been subject to further transfers
since her death. The clerk concluded:
4.The listed tenants are entitled to the allotment of their
interests in severalty as follows:
a.4/22nd to Sandra Donnell-Smith;
b.7/22nd to Russell Eugene McLean;
c.4/22nd to Florence Elaine McLean Lyons; and
d.1/22nd to Aaron Thomas.
5.Under N.C. Gen. Stat. § 46-13, the listed
co-tenants, two or more tenants in common have requested
the court to authorize the commissioners to allot their
several shares to them in common, as one parcel, evidenced
by their consent to the entry of this order.
e. 2/22nd in common, as one parcel, to William
McLean, who will hold a 1/4th interest in the
share; Liddell R. McLean, Jr., who will hold a 1/2 interest
in the share; and to Shirley McLean Carter, who will own a
1/4th interest in the share;
f. 2/22nd in common, as one parcel, to David P.
Raymond, Carol A. Williams, and Edward Raymond, who will hold