Donnell-Smith v. McLean

          Heard in the Court of Appeals 31 January 2019.

          Appeal 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.

          Ryan McKaig and Joseph L. Tart for petitioner-appellees.

          Johnson and Johnson, P.A., by Rebecca J. Davidson, for respondent-appellant Russell E. McLean.

          TYSON, JUDGE.

         Russell E. McLean ("Respondent") appeals from an order confirming the commissioners' report dividing partitioned property among the tenants in common. We affirm the superior court's order.

         I. Background

         At the 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.

         In 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.

         In 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.

         On 11 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.4/22^nd to Sandra Donnell-Smith;

b.7/22^nd to Russell Eugene McLean;

c.4/22^nd to Florence Elaine McLean Lyons; and

d.1/22^nd 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. 2/22^nd in common, as one parcel, to William McLean, who will hold a 1/4^th 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. 2/22^nd in common, as one parcel, to David P. Raymond, Carol A. Williams, and Edward Raymond, who will hold said ...