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Parish v. Mangum.

faction pro tanto of the damages arising from the breach suggested in the declaration, and only claimed a verdict for enough to carry the costs. Whether he had sustain. ed any damages, which remained unsatisfied, was the point. That he had, in legal contemplation, seems clear. For, although the money was ultimately raised, it was effected at an expense of money or labor, which would not have been incurred, if the defendant had pursued the direct and legal method of taking the goods. Ordinarily, indeed, the creditor has no concern, whether a sheriff levy on goods or land; for, it is not material to him, so that he gets his money at the return of the writ, and he, in fact, gets it without either more or less cost in any way, whether the sheriff take the one or the other kind of property. But it is not so with respect to executions issued by a Justice of the Peace; for the creditor is necessarily injured to some extent if the constable fail to levy on the goods, when he can, and, instead of doing so, levy on land. It is so, because a constable can sell goods and obtain satisfaction without any further agency, direct or indirect, of the creditor, further than finally to secure his money; whereas, by levying on the land, he compels the creditor to be at the expense of employing an attorney to get the judgment affirmed or an order of sale and sue out execution, or, at least, puts the creditor to the trouble of attending in person to perform those acts for himself. It seems plain, that in this way the creditor has an interest-one, that is pecuniary—that a constable should levy on the personalty, when accessible to him, and not on the land; as by the former, the creditor gets his debt without the loss of either time or money, while by the latter, a loss of one or the other is unavoidable. Therefore the relator must have sustained, at the least, the nominal damages assessed: and on that ground, I agree with my brother Nash, that the judgment should be affirmed.

PER CURIAM.

Judgment affirmed.

DEN ON DEMISE OF SAMUEL ANDERS ... TIMOTHY AN

DERS.

Where an award has been made by referees, under a rule of Court, and confirmed by the Court, it is binding on all parties, and while it remains unreversed the judgment cannot be contradicted.

Where a tenant in common holds over after partition, his possession shall not be considered adverse, unti! a demand is made by the other tenants, unless he does some act amounting to an actual exclusive possession, which could give notice that he intended to keep out all others, or some act amounting to a disclaimer of the rights of the other tenants.

The cases of Love v. Edmondson, 1 Ire. 152, aud Murray v. Shanklin, 4 Dev. & Bat. 291, cited and approved.

Appeal from the Superior Court of Law of Bladen County, at Spring Term, 1848, his IIoner Judge BAILEY presiding.

This is an action of ejectment to recover the land mentioned in the plaintiff's declaration. Both parties claim under John Anders, Jr., who died in 1814, leaving sever. al children, among them the defendant and James Anders, who died in the year leaving the plaintiffs and several other children. In the year a petition was filed by the heirs of John Anders, for a division of his real estate, in the County Court of Bladen County where the land lay. At- term, by the Court, five commissioners were appointed to make partition, who made their report to February term 1835, and at the same term, it was confirmed and ordered to be recorded and regis tered. The present defendant, at the May term succeed. ing, filed his petition to rehear the decree so made, and at August term succeeding, it was, by an order of the Court, dismissed, and the petitioner appealed to the Superior Court, where the case was continued from term t

Auders v. Anders.

9

term, until October term 1839, when it was referred to the arbitrament of Robert Strange and Owen Holmes, Esqrs., who made their award, under their hands and seals, to Spring term, 1840, when it was confirmed by the Court and ordered to be certified, enrolled and registered, which was accordingly done. The arbitrators incorporated into their award, the report made by the commissioners to the County Court in 1835. It appeared from the award, that the submission was made by the parties, and under a rule of Court. It recites, "this cause, by consent of parties and under a rule of Court, being referred to Robert Strange and Owen Holmes, with power, &c., and their award to be a judgment of the Court, and that the parties, agreeable to said award, and if so re. quired, are to execute new title deeds, so as to pass and vest the title to the disputed premises, agreeable to said award." The arbitrators then award "that the lands of John Anders, Jr, be, and they are hereby divided among the said parties, as they were heretofore divided by Wm. H. Beatty," &c. Mr. Beatty, and the other persons mentioned in the award, were the commissioners appointed by the County Court of Bladen to make partition. By that partition, lot No. 2, the land in dispute, was allotted to the heirs of James Anders. Before this action was commenced, the plaintiffs had demanded the possession of the land from the defendant, who refused to deliver it up-the demand was made at the town of Elizabeth, which is twenty miles from the premises.

The plaintiff claims the lot in question, as one of the heirs and as a purchase from the other heirs. The defendant claimed to have been in the adverse possession of the lot when those deeds were executed, and that they conveyed nothing to the plaintiff, and denied that the ar bitrators had any right, under the submission to divide the land of John Anders, Jr, and that the demand, as proved, was not sufficient.

Anders v. Anders.

His Honor instructed the jury, that the demand was sufficient, and that, if at the time the lessor of the plaintiff purchased from the other heirs, the defendant was in possession of the land, claiming it adversely, the deeds passed no title, and the plaintiff could not recover but one sixth of the lot in question, but if the defendant did not hold adversely, at the date of the deeds, then, if they were satisfied that lot No. 2 had been allotted to the heirs of James Anders by the commissioners, and the defendant was in possession and refused to give it up on the demand, which was made, the plaintiff was entitled to recover the whole of said lot, and they should find the de fendant guilty.

The jury found a verdict for the plaintiff and judgment being rendered, the defendant appealed to the Supreme Court.

Strange, for the plaintiff.

W. H. Haywood and W. Winslow, for the defendant

NASH, J. Exception is taken to the charge of the presiding Judge upon the ground, that he erred in his instruction to the jury as to the allottment of No. 2, in the partition, made by the commissioners. After the case on the petition to re-hear had gotten into the Superior Court, the parties agreed to refer the case to the arbitrament of two gentlemen, selected by themselves, to-wit: Messrs. Strange and Holmes, which was made a rule of Court. These referrees, in their award, adjudge, "that the lands of Jno. Anders. Jr., deceased, be and they are hereby divided among the parties, as they were heretofore divided by William H. Beattie," &c. Mr. Beattie and the other persons, mentioned in the award, were the commissioners, appointed by the County Court, to make partition of the lands of John Anders, jr., among his heirs, and in their report, the lot No. 2, the one in question, was allotted to

Anders v. Anders.

the heirs of Jas. Anders. It is contended by the defendant, that the arbitrators exceeded their authority in mak ing partition of the land. This may be so, but the objec tion is not now open to him. The award was returned to the Court, and confirmed by a judgment of that tribunal. As far as the case discloses the fact, the defendant made no opposition, and acquiesced, not only in the report, but in the judgment. Then was the time for him to have made known his objections. That judgment is still in full force and unreversed, and while it continues in force, being a record, it cannot be contradicted, because it imports absolute verity, as to every thing embraced in it. By the judgment of the Superior Court, then, on the award, the lot in question, No. 2, was allotted to the heirs of James Anders.

The defendant further excepts to the charge, because his Honor instructed the jury, if lot No. 2, was allotted to the heirs of James Anders, that the plaintiff was entitled to recover the whole lot. The plaintiff was one of the heirs of Jas. Anders, and claimed to have purchased the shares of all the other heirs. To the conveyances from them, the defendant objected, that he was, at the time of their execution, in the adverse possession of the land. The question was left by his Honor to the jury to ascertain, whether the defendant's possession was adverse or not; of this the defendant had no right to complain. To the time of the partition made, he was in possession as a tenant in common with the other heirs of John Anders and held the possession for them as well as for himself. The partition, it is true, severed the joint possession, but by itself, it did not make the possession of the defendant adverse. He held over by the sufferance of the heirs to whom it was allotted: in which case, notice to him was necessary before he could be converted into a wrongful holder, or make his possession torti He held the lot No. 2, for the heirs of James An

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