              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-649

                               Filed: 19 March 2019

Cumberland County, No. 16 SP 700

STEPHEN TARR, Petitioner,

             v.

MELISSA ZALAZNIK, Respondent.


      Appeal by Respondent from judgment entered 10 January 2018 by Judge

James G. Bell in Superior Court, Cumberland County. Heard in the Court of Appeals

14 January 2019.


      No brief submitted by Petitioner-Appellee.

      McCoy Wiggins PLLC, by Richard M. Wiggins, for Respondent-Appellant.


      McGEE, Chief Judge.


                                      I. Facts

      Stephen Tarr (“Petitioner”) and Melissa Zalaznik (“Respondent”) made a

$245,000.00 cash purchase of a lot with a house ((the “House”) and, together with the

lot, (the “Property”)) in Fayetteville on 28 October 2013.      Petitioner provided

$145,000.00 of the purchase price, and Respondent contributed $100,000.00. The

deed conveying the Property to Petitioner and Respondent noted that each was

unmarried, and that the Property was being conveyed to them “as joint tenants with

the right of survivorship[.]” Petitioner and Respondent lived together in the House

as an unmarried couple for a few years. The relationship between Petitioner and
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Respondent deteriorated, and the record indicates that Petitioner moved out of the

House in 2016. Respondent continued to reside in the House for more than a year

after Petitioner’s departure.

      Petitioner filed a “Petition to Partition” (the “petition”) with the Clerk of

Superior Court, Cumberland County (the “Clerk”), on 10 May 2016. See N.C. Gen.

Stat. § 46-3 (2017) (“One or more persons claiming real estate as joint tenants or

tenants in common . . . may have partition by petition to the superior court.”).

Petitioner stated that, although he “desire[d] to hold fifty percent . . . interest in [the

Property] in severalty,” he was requesting a partition by sale, pursuant to N.C. Gen.

Stat. § 46-22(a)—arguing that actual partition of the Property could not “be made

without injury to the parties . . . and it [wa]s necessary that the court order a sale for

partition among the tenants in common.” See N.C. Gen. Stat. § 46-22(a) (2017).

      Respondent answered the petition on 10 June 2016 and, though she did not

specifically argue against a partition by sale, Respondent stated:

             [A]lthough the parties to this action are tenants in common
             to the real estate described in the [p]etition [the Property],
             it is doubtful that at a public sale of the [Property it] could
             be sold at its fair market value and Respondent, pursuant
             to N.C.G.S. § 46-22.1, requests that the [trial court] order
             the parties mediate before an order is entered requiring a
             public sale of the [Property].

See N.C. Gen. Stat. § 46-22.1(b) (2017) (“When a partition sale is requested, the court

or the clerk may order mediation before considering whether to order a sale.”).



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Respondent further asked “[f]or such equitable relief as the [trial court] might deem

proper to protect the interest of Respondent.”               The record does not include any

evidence that mediation was ordered, and the petition was heard by the Clerk, who

thereafter entered an order on 17 October 2016. The Clerk found as fact that both

Petitioner and Respondent “believe[d] that an actual partition of the [P]roperty [could

not] be made without substantial injury to the parties”; and that the Property “should

be sold for partition as provided in N.C.G.S. § 46-28 and that a commissioner should

be appointed by the [trial court] for that purpose.” See N.C. Gen. Stat. § 46-28(a)

(2017) (“The procedure for a partition sale shall be the same as is provided in Article

29A of Chapter 1 of the General Statutes, except as provided herein.”). The Clerk

appointed a commissioner (the “Commissioner”) to conduct a sale of the Property, and

ordered that “the proceeds, after payment of all costs, be distributed [to Petitioner

and Respondent] as by law provided[.]” See N.C. Gen. Stat. §§ 46-7, 46-28, and 46-33

(2017)1

       The Commissioner filed a motion on 10 November 2016 to sell the Property,

and the Clerk entered an order granting the motion to sell the Property on the same

day. Neither the Commissioner’s motion nor the Clerk’s order specifically addressed

how the proceeds of the sale would be divided. The Commissioner conducted a sale



       1 The statutes indicate that three commissioners should be appointed, see N.C.G.S. §§ 46-7 and
46-28; however, as there is no record objection by either Petitioner or Respondent, it is presumed they
were in agreement with the procedure used, and any objection thereto has been waived.

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of the Property, and the highest offer was for a purchase price of $220,000.00. The

Clerk approved and confirmed the sale of the Property on 7 June 2017, and ordered

the Commissioner to deliver title to the purchasers upon receipt of the purchase price.

Neither party appealed the order of confirmation of sale and, therefore, it became a

final order. N.C. Gen. Stat. § 46-28.1(f) (2017). After all costs had been deducted

from the sales proceeds, $192,323.87 remained in the Commissioner’s account for

distribution to Petitioner and Respondent.

      For reasons not made clear by the record, the net proceeds of the sale were not

disbursed at the time the order of confirmation became final. N.C.G.S. § 46-33 (“At

the time that the order of confirmation becomes final, the court shall secure to each

tenant in common, or joint tenant, his ratable share in severalty of the proceeds of

sale.”). Approximately four months after the sale of the Property, Petitioner filed a

“Supplemental Petition,” on 5 October 2017, wherein he noted that “the proceeds

received from the sale of the property did not equate for [Petitioner and Respondent]

to recover their initial portion of the purchase price[.]”      Therefore, Petitioner

requested “that [the] net proceeds be divided and apportioned pursuant to [the] initial

contribution” amounts provided by Petitioner and Respondent.              Specifically,

Petitioner requested that he receive fifty-nine percent of the net proceeds and that

Respondent receive forty-one percent—in order to correspond with Petitioner’s




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contribution of $145,000.00 to the purchase of the Property compared with

Respondent’s $100,000.00 contribution.

      The Clerk agreed with Petitioner that the net proceeds from the sale of the

Property should be divided in proportion to the contributions made by Petitioner and

Respondent toward the purchase of the Property. Therefore, the Clerk ordered a fifty-

nine percent to forty-one percent distribution in favor or Petitioner. Respondent

appealed, and the matter was heard in superior court. By judgment entered 10

January 2018, the trial court conducted a de novo review, agreed with the decision of

the Clerk, and ordered the same fifty-nine percent to forty-one percent division of the

net proceeds in Petitioner’s favor. Respondent appeals.

                                II. Standard of Review

      “An action for partition under [Chapter 46] is a special proceeding. When such

action is appealed from the clerk to the superior court ‘for any ground whatever . . .,’

the trial court has the authority to consider the matter de novo.” Jenkins v. Fox, 98

N.C. App. 224, 226, 390 S.E.2d 683, 685 (1990) (citations omitted); see also N.C. Gen.

Stat. § 46-1 (2017). When the trial court acts as the trier of fact:

                 [T]he standard of review on appeal is whether there was
                 competent evidence to support the trial court’s findings
                 of fact and whether its conclusions of law were proper
                 in light of such facts. Findings of fact by the trial court
                 in a non-jury trial have the force and effect of a jury
                 verdict and are conclusive on appeal if there is evidence
                 to support those findings. A trial court’s conclusions of
                 law, however, are reviewable de novo.


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             “[W]hether a partition order and sale should issue is within
             the sole province and discretion of the trial judge and such
             determination will not be disturbed absent some error of
             law.”

Solesbee v. Brown, __ N.C. App. __, __, 805 S.E.2d 183, 186–87 (2017) (citations

omitted).

                                    III. Analysis

      Respondent argues the trial court erred in ordering an unequal distribution of

the net proceeds from the partition by sale of the Property. We disagree.

                              A. Chapter 46. Partition

      Chapter 46 of the North Carolina General Statutes governs the partition of

real property held by cotenants—tenants in common and joint tenants—including the

partition in the present case. Both Petitioner and Respondent agreed to partition of

the Property by sale pursuant to N.C.G.S. § 46-22(a). Respondent does not challenge

any part of the sale of the Property. Respondent’s argument is that the trial court

was without the authority to order that Petitioner receive a greater share of the net

proceeds from the sale of the Property.

      Respondent’s argument does not recognize that a partition proceeding is a

proceeding in equity, not law. Concerning the disbursement of the net proceeds

pursuant to partition by sale, N.C.G.S. § 46-33 states that, after completion and

confirmation of a sale of real property in a partition proceeding, “the court shall



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secure to each tenant in common, or joint tenant, his ratable share in severalty of the

proceeds of sale.” N.C.G.S. § 46-33. Equitable principles apply to the decision of the

trial court in this regard. “Prior to 1868 courts of equity had jurisdiction of partition

proceedings in North Carolina.       Since that date partition has been by special

proceeding before the clerk of superior court, with right of review by the judge of

superior court. Procedure is outlined by statute. G.S., Ch. 46.” Allen v. Allen, 263

N.C. 496, 498, 139 S.E.2d 585, 587 (1965) (citation omitted). “The superior court still

possesses all the powers and functions of a court of equity which it possessed prior to

1868. The method of finding facts has been changed, but none of the powers of the

court have been abridged.” McLarty v. Urquhart, 153 N.C. 339, 340-41, 69 S.E. 245,

246 (1910). In general, the purpose of equitable remedies “is ‘the doing of complete,

essential, and perfect justice between all the parties without regard to form, and its

object is the prevention of injustice.’” Bank of N.Y. Mellon v. Withers, 240 N.C. App.

300, 302, 771 S.E.2d 762, 764 (2015) (citation omitted) (case concerning equitable

subrogation).

      More specifically, even though partition of real property is governed by

Chapter 46,

              in this state partition proceedings have been consistently
              held to be equitable in nature. The statutes are not a strict
              limitation upon the authority of the court. Since the
              proceeding is equitable in nature, the court has jurisdiction
              to adjust all equities in respect to the property. . . . . The
              court has authority to give directions . . . to the end that


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             justice be done between the parties.

Allen, 263 N.C. at 498–99, 139 S.E.2d at 587–88 (citation omitted); see also Gray v.

Crotts, 58 N.C. App. 365, 370, 293 S.E.2d 626, 629 (1982). In an opinion affirming

the trial court’s ruling that, in a partition proceeding, “one tenant in common may set

up claim for amounts expended to remove an encumbrance on the common

property[,]” Henson v. Henson, 236 N.C. 429, 429, 72 S.E.2d 873, 873 (1952), our

Supreme Court explained:

             Petitions for partition are equitable in their nature, and
             the court has jurisdiction to consider the rights of the
             parties under the principles of equity and to do justice
             between the parties.

             The rule is that in a suit for partition a court of equity has
             power to adjust all equities between the parties with
             respect to the property to be partitioned. “A tenant in
             common who has paid or assumed liens or encumbrances
             on the property ordinarily is entitled on partition to a
             proportionate reimbursement therefor from the other
             tenants.”

             In such case the sale may be ordered and the rights of the
             parties adjusted from the proceeds of sale.

Id. at 430, 72 S.E.2d at 873–74 (citations omitted); see also Kayann Properties, Inc. v.

Cox, 268 N.C. 14, 19-20, 149 S.E.2d 553, 556–57 (1966); Ward v. Ward, __ N.C. App.

__, __, 797 S.E.2d 525, 529, disc. review denied, 369 N.C. 753, 800 S.E.2d 65 (2017).

In furtherance of its equitable powers, “[p]ending final determination of the

proceeding, on application of any of the parties in a proceeding to partition land, the



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court may make such orders as it considers to be in the best interest of the parties[.]”

N.C. Gen. Stat. § 46-3.1 (2017).

      In the present case, the trial court, in its 10 January 2018 judgment, concluded

“that the net proceeds of sale of the Property should, in accordance with N.C.G.S. §

46-10[,]   be     in   accordance   [with]   Petitioner[’s]   and   Respondent’s   initial

contribution[s.]” N.C. Gen. Stat. § 46-10 concerns the duties of the commissioners in

an actual partition, not the distribution of net proceeds in a partition by sale. See

N.C. Gen. Stat. § 46-10 (2017). However, there is nothing to prevent the trial court

from applying the equitable principles found in N.C.G.S. § 46-10 to a partition by sale

because, “‘[i]n this State partition proceedings have been consistently held to be

equitable in nature, and the court has jurisdiction to adjust all equities in respect to

the property.’”    Ward, __ N.C. App. at __, 797 S.E.2d at 529 (citation omitted)

(emphasis added). N.C.G.S. § 46-10 states in part:

                The commissioners . . . must . . . partition the [real
                property] among the tenants in common, or joint tenants,
                according to their respective rights and interests therein, by
                dividing the land into equal shares in point of value as
                nearly as possible, and for this purpose they are
                empowered to subdivide the more valuable tracts as they
                may deem best, and to charge the more valuable dividends
                with such sums of money as they may think necessary, to
                be paid to the dividends of inferior value, in order to make
                an equitable partition.

N.C.G.S. § 46-10 (emphasis added). The equitable principle underlying N.C.G.S. §

46-10 is that partition of real property should be conducted in a manner that best


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achieves an equitable distribution of the real property between the tenants in

common or joint tenants. Id. This principle is not incompatible with N.C.G.S. § 46-

33, which states that, after confirmation of a partition by sale, “the court shall secure

to each tenant in common, or joint tenant, his ratable share in severalty of the

proceeds of sale.” Id. N.C.G.S. § 46-10—by its plain language—does not apply to the

present case and, therefore, the trial court’s citation to N.C.G.S. § 46-10 in its

judgment was unnecessary, and potentially confusing. However, because the trial

court “‘has power to adjust all equities between the parties with respect to the

property to be partitioned[,]’” Roberts, 260 N.C. at 240, 132 S.E.2d at 484 (citation

omitted), it committed no error by distributing the net proceeds of the Property

“according to [Petitioner’s and Respondent’s] respective rights and interests

therein[.]” N.C.G.S. § 46-10.

      In the present case, both the Clerk and the trial judge determined that the

equities favored an unequal distribution of the net proceeds of the sale of the Property

in order to partially compensate Petitioner for the additional $45,000.00 he had

contributed towards the purchase of the Property. We find nothing in Chapter 46 or

the associated case law that would prevent the trial court from exercising its

equitable powers in this manner.

                                B. Chapter 41. Estates




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      However, Respondent argues that a statute from Chapter 41 of the North

Carolina General Statutes, “Estates,” prohibited the trial court from utilizing its

equitable powers to order an unequal division of the net proceeds of the sale of the

Property. In 1784, the right of survivorship in North Carolina was abolished by

statute “where the joint tenancy would otherwise have been created by the law[.]”

Taylor v. Smith, 116 N.C. 531, 535, 21 S.E. 202, 204 (1895). However, the statute

“does not operate to prohibit persons from entering into written contracts as to land

. . . such as to make the future rights of the parties depend upon the fact of

survivorship.” Id. The current version of that statute is N.C. Gen. Stat. § 41-2

(“Survivorship in joint tenancy defined; proviso as to partnership; unequal ownership

interests”), which states in part: “Nothing in this section prevents the creation of a

joint tenancy with right of survivorship in real . . . property if the instrument creating

the joint tenancy expressly provides for a right of survivorship[.]” N.C. Gen. Stat. §

41-2(a) (2017). The statute further states:

             The interests of the grantees holding property in joint
             tenancy with right of survivorship shall be deemed to be
             equal unless otherwise specified in the conveyance. Any
             joint tenancy interest held by a husband and wife, unless
             otherwise specified, shall be deemed to be held as a single
             tenancy by the entirety, which shall be treated as a single
             party when determining interests in the joint tenancy with
             right of survivorship. Joint tenancy interests among two
             or more joint tenants holding property in joint tenancy with
             right of survivorship are subject to the provisions of G.S.
             28A-24-3 upon the death of one or more of the joint tenants.



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N.C.G.S. § 41-2(b).

                           1. Purpose of Chapter 41—Law

      The articles in Chapter 41 serve to clarify definitions, rights, and obligations

associated with the contractual or testamentary transfer of estates. N.C.G.S. § 41-

2(b) is found in Article 1 of Chapter 41, entitled: “Survivorship Rights and Future

Interests.” Much of Article 1 is devoted to the abolition of common law rules related

to the transfer of real property, and the promulgation of new rules. See, e.g., N.C.

Gen. Stat. § 41–6.2 (2017) (“Doctrine of worthier title abolished”); N.C. Gen. Stat. §

41–6.3 (2017) (“Rule in Shelley’s case abolished”); N.C. Gen. Stat. § 41–2.1 (2017)

(“Right of survivorship in bank deposits created by written agreement”); N.C. Gen.

Stat. § 41–2.5 (2017) (“Tenancy by the entirety in mobile homes”). The remaining

articles in Chapter 41 have similar purposes: “Article 2. Uniform Statutory Rule

Against Perpetuities[;]” “Article 3. Time Limits on Options in Gross and Certain

Other Interests in Land[;]” “Article 4. The Uniform Transfer on Death (Tod) Security

Registration Act[.]”

      As illustrated above, Chapter 41 is primarily concerned with two general

issues: (1) the transfer of property upon the death of an owner of that property and,

(2) establishing and clarifying limitations on the free use and transfer of property.

The enforcement of the provisions set forth in Chapter 41 is a matter of law, not

equity—though equitable issues may arise therefrom. See Clifton v. Owens, 170 N.C.



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607, 87 S.E. 502 (1916); Simmons v. Waddell, 241 N.C. App. 512, 526–27, 775 S.E.2d

661, 676 (2015) (citations omitted) (emphasis added) (“‘The interpretation of a will’s

language is a matter of law.” . . . .         “[The] intent [of the testator] is to be gathered

from a consideration of the will from its four corners, and such intent should be given

effect unless contrary to some rule of law or at variance with public policy.’”).

                               2. Purpose of Chapter 46—Equity

      Chapter 46, however, is specifically concerned with the partition of jointly

owned property among living persons.2 N.C.G.S. § 46-3 (stating in relevant part that

“persons claiming real estate as joint tenants . . . may have partition by petition to

the superior court”). Partition pursuant to Chapter 46 is accomplished in a special

proceeding, pursuant to the procedures set forth in Chapter 46 and, where not in

conflict with Chapter 46, pursuant to Article 33, “Special Proceedings,” of Chapter 1.

See N.C.G.S. § 46-1 (“the procedure shall be the same in all respects as prescribed by

law in special proceedings, except as modified herein”). Unfortunately, Chapter 46

does not specifically address the trial court’s equitable powers to order an unequal

division of the net proceeds of a partition by sale based upon unequal monetary

contributions toward the initial purchase of a property by joint tenants with the right

of survivorship.

             3. Equitable Powers of the Trial Court—Equitable Distribution



      2   With certain limited exceptions not relevant to this analysis.

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      Because we can find no statute or precedent directly involving the equitable

powers of a trial court to order an unequal division of the net proceeds from a partition

by sale of real property held as joint tenants with the right of survivorship, we look

to other circumstances where the trial court, acting in equity, is tasked with the

division of real property. When married persons hold title to real property as tenants

by the entirety, “‘each is deemed to be seized of the whole, and not of a moiety or any

undivided portion thereof.’” Carter v. Insurance Co., 242 N.C. 578, 579, 89 S.E.2d

122, 123 (1955) (citation omitted). As such, when an estate held as tenants by the

entirety is severed by absolute divorce, each former spouse is entitled to a one-half

interest in the estate, held as tenants in common. Id. at 580, 89 S.E.2d at 124.

      Prior to the enactment of the Equitable Distribution Act, “‘[t]he general rule

[wa]s that upon divorce the two former spouses bec[a]me equal cotenants even though

one of the former spouses paid the entire purchase price [for real property purchased

during the marriage]. Each spouse [wa]s entitled to an undivided one-half interest

in the property[.]’” Branstetter v. Branstetter, 36 N.C. App. 532, 536, 245 S.E.2d 87,

90 (1978) (citations omitted). Even upon separation, the expenditures of one spouse

to maintain the property prior to divorce could not be recovered by that spouse. Id.

However, “[i]n 1981, the General Assembly sought to alleviate the unfairness of the

common law rule by enacting our Equitable Distribution Act which is now codified as




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N.C.G.S. 50–20 and 21.” White v. White, 312 N.C. 770, 774–75, 324 S.E.2d 829, 831

(1985).3

       When the trial court makes decisions concerning the distribution of marital

property pursuant to the equitable distribution provisions of Chapter 50, it is acting

as a court of equity. See N.C. Gen. Stat. § 50-20(c) (2017) (“If the court determines

that an equal division [of marital property] is not equitable, the court shall divide the

marital property and divisible property equitably.”); Stone v. Stone, 181 N.C. App.

688, 695, 640 S.E.2d 826, 830 (2007); Barlowe v. Barlowe, 113 N.C. App. 797, 799,

440 S.E.2d 279, 280 (1994) (citation omitted) (“in an equitable distribution

proceeding, the trial court has wide discretion to divide the property unequally”).

Pursuant to the Equitable Distribution Act, the trial court, acting in equity, can order

the unequal distribution of the net proceeds from the sale of real property purchased

by a married couple as tenants by the entirety. N.C.G.S. § 50-20(c) (“There shall be

an equal division by using net value of marital property and net value of divisible

property unless the court determines that an equal division is not equitable. If the

court determines that an equal division is not equitable, the court shall divide the

marital property and divisible property equitably.”); Mugno v. Mugno, 205 N.C. App.

273, 276, 278–79, 695 S.E.2d 495, 497–98, 499 (2010) (award of eighty-six percent of

the marital estate—including the marital home—to wife upheld in equitable


       3 For a discussion concerning some of the inequities in the law prior to enactment of the
Equitable Distribution Act, see White, 312 N.C. at 773–74, 324 S.E.2d at 831.

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distribution action). Certainly real property owned by a married couple as joint

tenants with the right of survivorship is, pursuant to the equitable powers of the trial

court, also subject to unequal division in an equitable distribution action.        “The

purpose of the Equitable Distribution Act is ‘to divide property equitably, based upon

the relative positions of the parties at the time of divorce, rather than on what they

may have intended when the property was acquired.’” Mims v. Mims, 305 N.C. 41,

54, 286 S.E.2d 779, 788 (1982).        “The General Assembly has committed the

distribution of marital property to the discretion of the trial courts, and the exercise

of that discretion will not be disturbed in the absence of clear abuse.” Lawing v.

Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986) (citation omitted).

            4. Equitable Powers of the Trial Court—Chapter 46 Partition

      The General Assembly has also committed the partition and distribution of

real property owned by one or more people as tenants in common, or as joint tenants,

to the discretion of the trial courts, acting as courts of equity, through the enactment

of Chapter 46. See, e.g., N.C.G.S. § 46-1; N.C.G.S. § 46-3.1; N.C.G.S. § 46-33; Solesbee,

__ N.C. App. at __, 805 S.E.2d at 186–87, Ward, __ N.C. App. at __, 797 S.E.2d at 529.

             Proceedings for partition are equitable in nature, and in a
             suit for partition a court of equity has power to adjust all
             equities between the parties with respect to the property to
             be partitioned. A sale for partition may be ordered and the
             rights of the parties adjusted from the proceeds of the sale.




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Roberts v. Barlowe, 260 N.C. 239, 240, 132 S.E.2d 483, 484 (1963) (citations omitted)

(emphasis added). The trial court properly decided the petition “before an order of

distribution was made.” Id. at 240, 132 S.E.2d at 484 (citation omitted).

        “The statutes are not a strict limitation upon the authority of the court. Since

the proceeding is equitable in nature, the court has jurisdiction to adjust all equities

in respect to the property.” Allen, 263 N.C. at 498, 139 S.E.2d at 587 (citation

omitted).4 We hold—similar to an equitable distribution action—that the provisions

of N.C.G.S. § 41-2(b) were “not a strict limitation upon the authority of the court”

acting pursuant to Chapter 46. Allen, 263 N.C. at 498, 139 S.E.2d at 587 (citation

omitted). The provisions of N.C.G.S. § 41-2(b) did not deprive the trial court in the

present case of its equitable powers to “adjust all equities in respect to the

[P]roperty[,]” by ordering that Petitioner be partially compensated for the additional

$45,000.00 he paid to purchase the property through an unequal division of the net

proceeds from the sale of the Property. Allen, 263 N.C. at 498, 139 S.E.2d at 587

(citation omitted). Finding no legal error or abuse of the trial court’s discretion in

determining the equities in the present case, we affirm.

        AFFIRMED.

        Judges HUNTER, JR. and HAMPSON concur.


        4 We note that Respondent’s attorney, in his argument to the trial court, recognized the
equities involved, stating: “And it may be inequitable [for the trial court to order an equal division of
the net proceeds], it may be not what they intended, but unfortunately, that’s what the deed says, and
that’s what the law dictates to be done.”

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