
    JOHN SUTTON & WIFE vs. CULLEN EDWARDS & AL.
    When partition is made of lands held by tenants in common, according to the* provisions of the Statute of 1836, Rev. Stat. ch. 85, sec. 23, the money, which is assessed upon any lot, to be paid to another to produce equality of value, is, by force oí the Statute, a charge upon the land itself, and follows it, into whosesoever hands it goes.
    There is no statutory limitation, asa bar to the recovery of the money so assessed.
    The case of Wynn v. Tnnsiall. 1 Dev. Eq. 28, cited and approved.
    Cause removed from the Court of Equity of Greene County, at the Spring Term, 1848.
    The bill sets forth, that Thomas Edwards died in the year-, leaving a large real estate, which descended to his children, who were his heirs at law: That the plaintiff, Polly Sutton, was one of his heirs, and the others were, Theophilus, Cullen, Francis, Thomas, Nathan, Rosa, and William T. Edwards, eight in number ; and that Theophilus died intestate and without issue. A petition was filed in 1823 in the County Court of Greene, by the heirs to procure partition of the lands, so descended, and such proceedings were had according to law, that the lands were divided by commissioners, duly appointed, who made their report to February Term 1824, of the said Court, which was confirmed and duly enrolled and registered ; and the parties took possession of their respective shares. By the commissioners, lot No. 7, which was inferior to the others by $338 7S, was assigned to the complainant Polly ; and to make her share equal in value, they charged share No. 1, with $155 29, — share No. 5, with the sum of $70 34 — share No. 2, with the sum of $133 22, to be respectively paid to share No. 7. Lot No. 1 was allotted to Francis Edwards, No. 2, to Thomas Edwards, and lot No, 5 to Cullen Edwards, all of whom had notice of the charge on their respective shares. Lots No. 1 and 2, have been conveyed to Cullen Edwards, and lot No. 5 has been conveyed'by Cullen Edwards to John Sugg, who, it is alleged, had notice of the charge. The plaintiff, Polly, intermarried with the other plaintiff, John Sutton, as is alleged, while under age. The bill states the refusal of the defendants to pay the several sums, charged by the commissioners, on their respective shares; and that the plaintiffs caused a scire facias to issue to the defendants to enforce the collection, which was carried by appeal to the Superior Court of Greene County, where, upon objection by the defendants, the plaintiffs failed, upon the ground that there was no judgment in the County Court, .when the division was confirmed. The bill prays for a partition now, or at the election of the defendants, for a decree for the money, which was charged upon the former partition upon the respective shares.
    The answers admit the death of Thomas Edwards, and that the persons named in the bill, as such, are his children and heirs at law : That the partition was made, as set forth, and that they were willing to abide by it, and have paid the money. The defendant Cullen admits, that he purchased from his brother, Francis, lot No. 1, and from his brother Thomas, lot No. 2 ; at which time, he alleges, he was ignorant that the plaintiffs claimed any charge upon them. The defendants allege, that at the time the plaintiffs intermarried, the plaintiff Polly was of full age, and claim the benefit of the statute of limitations, as if pleaded ; and they further claim the benefit of the presumption of payment, arising from lapse of time. They further allege, that at May Term 1826, of Greens County Court, the plaintiff, John, was appointed guardian to the defendants, Nathan, Cullen, Thomas, Franklin and Rosa, and took into possession their property, both real and personal, and from the rents and profits thereof has retained in his hands money sufficient to pay the charges upon their respective shares.
    Replication was taken to the answers, and the cause transferred to the Supreme Court.
    
      J. H. Bryan and Husted, for the plaintiffs.
    
      Mordecai, for the defendants.
   Nash, J.

It is not denied, that the partition of the lands of Thomas Edwards among his heirs did take place, as set forth in the bill, and that lot No. 7 was assigned to the plaintiff’, Polly Sutton, and that lots Nos. 1, 2, and 5, were severally assigned to Francis, Thomas and Cullen Edwards, and charged with the respective sums, as stated, to be paid to lot No. 7. It is further admitted, that Cullen subsequently purchased the shares of Franklin and Thomas, and, it is proved, sold his original lot No. 5, to the defendant, John Sugg. These were the only shares charged with the payment of money. The object of the bill is to compel a compliance with the judgment of partition by enforcing through a decree of this Court the payment of the money, or, in case the defendants object to that, to obtain partition now. When partition is made of land, held by tenants in common, according to the provisions of the Statute of 1836 — Rev. Stat. Ch. 85, Sec. 23—the money, which is assessed upon any lot to be paid to another to produce equality of value, is, by force of the Act, a chargb upon the land itself, and follows it into whosesoever hands it goes. Wynn S¡- wife v. Tunstatt, 1 Dev. Eq. 28. The lien is a specific one upon the land. The defendants having agreed, that the partition heretofore made shall stand, the only question is, whether the sum assessed has been paid; if not, from whom it is to be raised?

The defendants object to the relief, sought by the plaintiffs, on several grounds. The first is, that their claim is barred by the statute of limitations. The second, that the lapse of time raises the presumption of payment. The third, because the plaintiff, John Sutton, was their guardian, and took into his possession their land, and from the rents and profits he received and retained in his hands a sum, sufficient to pay off the charge upon it; and the fourth, that they are purchasers without notice.

The fourth objection hath already been answered, in holding that the sums assessed are a charge upon the land. Neither can the first and second objections avail the defendants. There is no statutory limitation, as a bar, by which proceedings of this kind are governed.

The presumption of payment, under the circumstances of this case, does not arise. By the Act of 1801—Rev. St. Ch. 85, Sec. 3, 4—it is provided, that, when in partition of land, a lot, assigned to a minor, is charged with the payment of a sum of money, it shall not be payable, until the minor arrives at full age, unless the guardian shall have assets in his hands,'sufficient to discharge the lien. The Legislature did not intend the land should be sold to pay the money assessed on it, during the minority of the owner. The defendants say, they were minors, when the partition was made ; but they have failed to prove, when they were born, and, of course, when they came of age. There is, then, no point of time fixed by the evidence» when the presumption of payment could arise.

It is in the third place objected by the defendants, that the plaintiff, John Sutton, as their guardian, had in his hands from the rents of their lands money, sufficient to. discharge the lien, and that he had retained it for that purpose.

There is no evidence in the case, that John Sutton ever w'as appointed the guardian of Cullen and Francis, or ever acted as such. But th&re is evidence in the case, which - satisfactorily shows, that he was guardian of Thomas, A record is produced, which shows, that a suit was brought against him in the name of the State to the use of Thomas Edwards, which was finally disposed of at August Term 1841, of Lenoir County Court. In the progress of the suit, the accounts of the guardian were referred to two referees, who reported, that, upon stating his account, it was found that he owed the plaintiff $55 ; but that the plaintiff owed him for owelty of partition, in principal and interest, $231 98 ; and the jury, under the plea of payment, found a verdict for the defendant. So far, then, as lot No. 5 is concerned, the jury have found substantially in that case, that Thomas Edwards had paid the sum of $55, and no more, due upon it to the present plaintiff. No evidence, as before remarked, has been laid before the Court to show, that John Sutton ever was the guardian in fact or in law of Cullen and Francis, or that he had one cent of their property in his hands; so that he could not have been liable, even if it was shown he was their guardian. Such, probably, was the fact, but a Court of Equity is confined to the allegata etprobata of the case. A chancellor has no more authority to decide matters of fact, without evidence, than .has a jury.

Finally, the defendants say and prove, that the plaintiffs, before the bringing this suit, had sold lot No. 7 to one Isaac Edwards, and have thereby debarred themselves from any right to claim the money, assessed to it in the partition. We have looked into the copy of the conveyance to Isaac Edwards, filed by the defendants. The deed is an ordinary conveyance of the land, described in it, with all the right and interest of the bargainors in and to it. Not a word is said of any interest, which they might have in lots Nos. 1, 2, and 5, being conveyed. That such owner might not part, by sale, wdth his land, the share allotted to him, and still retain his right to the mo-money, assessed to it, cannot be seriously pretended.

The plaintiffs are entitled to have the former partition established, and to a decree for the payment of the sums charged and interest. As the former owners, in selling their shares, have not, as far as is shown, left in the hands of the purchasers any funds, with which the money, charged on their shares, might be paid, the decree must, in the first place, be against the original owners, and, if the money cannot be raised out of them, they are entitled to a decree against the land.

And there must be a reference to the master to ascertain the sums due, in principal and interest, from the lots Nos. 1, 2, and 5, respectively.

Per Curiam.

Decree accordingly»  