
139 S.E.2d 577 (1965)
263 N.C. 248
Richard Lane BROWN, III (Unmarried) and Charles Palmer Brown (Unmarried), Petitioners,
v.
Robert Martin BOGER and wife, Evelyn Boger, Nancy Groves Boger Forte and husband, Kenneth Eugene Forte, and Cabarrus Bank & Trust Company and M. A. Boger, Trustees Under the Will of Ida Groves Boger, Defendants.
No. 473.
Supreme Court of North Carolina.
January 15, 1965.
*581 D. D. Smith and Hobart Morton, Albemarle, for defendant appellants.
Richard L. Brown, Jr., and S. Craig Hopkins, Albemarle, for petitioner appellees.
MOORE, Justice.
Defendants except to and assign as error the findings of fact and conclusions of law set out in numbered paragraphs 6, 7, 9, 10 and 11 of the judgment below. They say and contend that the evidence does not support the findings of fact and the findings of fact do not support the conclusions of law.
For a clear understanding of the problem presented, a brief review of the legal principles involved is essential.
"At common law and in equity as well, in proceedings for partition of land, the cotenants were entitled to partition in kind if they so demanded, regardless of the difficulty or inconvenience of doing so. Only by consent of parties did the courts have power to order a sale of the land and a division of proceeds among the common owners." 40 Am.Jur., Partition, s. 83, p. 72. "By original equitable jurisdiction, independent of any statute, if all of the parties sui juris were willing, the court had power to decree a sale; and this, even though infants might be among the parties interested. But where one of the parties sui juris refused his consent, the court had no option but to proceed with the ordinary mode of partition." 4 Pomeroy's Equity Jurisprudence, 5th Ed., s. 1390, pp. 1018, 1019. See also 4 Thompson on Real Property, s. 1828, p. 308. It seems that courts of equity gradually assumed authority to order sales of land for partition in instances of extreme hardship, without statutory sanction, and in cases *582 where one or more contenants did not consent. Whether the courts of equity had such authority became a matter of concern to the courts and the General Assembly of North Carolina early in the Nineteenth Century. In Carolina Mineral Co. v. Young, 220 N.C. 287, 17 S.E.2d 119, 151 A. L.R. 383, we find the following: "Although there is authority for the view that partition by sale of lands could formerly be made under the equitable jurisdiction of the courts, 17 Am. & Eng.Enc.Law 785; Wolfe v. Galloway, 211 N.C. 361, 190 S.E. 213, statutes authorizing such sale have been regarded as innovations upon the common law and in derogation thereof. 2 Tiffany, Real Property, 3d Ed., 1939, 325; 17 Am. & Eng.Enc.Law 785; Hale v. Thacker [122 W.Va. 648], 12 S.E.2d 524. In this state statutory relief of that sort apparently derives from the statute of 1812, Chapter 847, Laws of North Carolina, Potter, Vol. 2, the preamble of which indicates both the origin and nature of the relief as follows: `Whereas doubts exist as to the power of courts of equity to order a sale of real estate in cases of partition, where an equal and advantageous division cannot be made. Be it enacted, &c', and there follows the grant of the power." The statute of 1812 provides "That it shall and may be lawful for any court of equity in cases of application for a division of real estate, when it shall be suggested and made to appear to the satisfaction of the court, that an actual partition cannot be made without injury to some or all of the parties interested, to order a sale of the property upon such terms as such court shall deem just and reasonable." 2 Potter: Laws of North Carolina, Ch. 847, p. 1239. So, in this jurisdiction prior to 1868, partition between tenants in common was a matter to be determined by a court of equity. Haddock v. Stocks, 167 N.C. 70, 83 S.E. 9. In a case in equity, Windley v. Barrow, 55 N.C. 66 (1854), it is declared: "Prima facie, each party interested in a tract of land, is entitled to an actual partition, and it is incumbent on him who asks for a sale to show, that his interest will be promoted by it, and that no loss will be worked by it to any other party. Davis v. Davis, 2 Ire.Eq. 607 (37 N.C. 607)." Further: "In cases of partition, a court of equity does not act merely in a ministerial character, but it administers its relief ex equo et bono, according to justice and equity.
Procedures have changed but not substantive principles. Partition of land is by special proceeding. G.S. § 46-3; G.S. § 46-22. Whether land should be divided in kind or sold for partition is a question of fact for decision of the clerk of superior court, subject to review by the judge on appeal; it is not an issue of fact for a jury. Ledbetter v. Pinner, 120 N.C. 455, 27 S.E. 123; Talley v. Murchison, 212 N.C. 205, 193 S.E. 148. G.S. § 46-22 provides that "Whenever it appears by satisfactory proof that an actual partition of the lands cannot be made without injury to some or all of the parties interested, the court shall order a sale of the property described in the petition, or any part thereof." The general rule (interpreting the statutes) presently applied is: "A tenant in common is entitled, as a matter of right, to a partition of the land to the end that he may have and enjoy his share therein in severalty, unless it is made to appear that an actual partition cannot be had without injury to some or all of the interested parties." Seawell v. Seawell, 233 N.C. 735, 65 S.E.2d 369; Hyman v. Edwards, 217 N.E. 342, 7 S.E.2d 700. There is unanimity of opinion and decision that partition of land in kind is a matter of right. Carolina Mineral Co. v. Young, supra; Barber v. Barber, 195 N.C. 711, 143 S.E. 469; Trull v. Rice, 85 N.C. 327; Windley v. Barrow, supra. But this right of actual partition may not be so used as to injure another. Trull v. Rice, supra. The burden is upon those alleging the necessity and desirability of a sale to establish the necessary requisites. Seawell v. Seawell, supra; Wolfe v. Galloway, supra; Windley v. Barrow, supra. "As between a partition in kind or sale of land for division, the courts and the statutes favor a partition in kind, if it can be accomplished *583 equitably and fairly, since this does not disturb the existing form of inheritance or compel a person to sell his property against his will, which, it has been said, should not be done except in cases of imperious necessity. * * * it is no objection to a partition in kind that some of the cotenants prefer a sale to a partition * * *." 68 C.J.S. Partition § 125, pp. 186, 187; 4 Pomeroy's Equity Jurisprudence, 5th Ed., s. 1390, p. 1019; 4 Thompson on Real Property, s. 1828, p. 310; Tuggle v. Davis, 292 Ky. 27, 165 S.W.2d 844, 143 A.L.R. 1087 (1942); Owings v. Talbott, 262 Ky. 550, 90 S.W.2d 723 (1936).
It is essential to a sale of land for partition that it be established that an actual division in kind cannot be made without injury to some or all of the cotenants. G.S. § 46-22. By "injury" to a cotenant is meant substantial injustice or material impairment of his rights or position, such that it would be unconscionable to require him to submit to actual partition. 68 C.J.S. Partition § 127, p. 190. Since partition in kind is favored, such partition will be ordered, even though there may be some slight disadvantages in pursuing such method. ibid., p. 192. A sale will not be ordered merely for the convenience of one of the cotenants. ibid., p. 190. The physical difficulty of division is only a circumstance for the consideration of the court. Carolina Mineral Co. v. Young, supra. On the question of partition or sale the determinative circumstances usually relate to the land itself, and its location, physical condition, quantity, and the like. 68 C.J.S. Partition § 127, p. 193. "The test of whether a partition in kind would result in great prejudice to the cotenant owners is whether the value of the share of each in case of a partition would be materially less than the share of each in the money equivalent that could probably be obtained for the whole." (Emphasis added). 4 Thompson on Real Property, s. 1828, p. 309. But many considerations, other than monetary, attach to the ownership of land. Hale v. Thacker, 122 W.Va. 648, 12 S.E.2d 524 (1940). No exact rule is possible of formulation to determine the question whether there should be a partition in kind or a partition by sale. The determination must be made on the facts of the particular case. 68 C.J.S. Partition § 127, p. 190. There should be a partition in kind unless such partition will cause material and substantial injury to some or all of the parties interested.
The court has no authority to order a sale of land for partition without satisfactory proof of facts showing that an actual partition will cause injury to some or all of the cotenants. Wolfe v. Galloway, supra. The essential facts must be found by the court. Seawell v. Seawell, supra. The findings of the judge are conclusive and binding if there is any evidence in the record to support them. West v. West, 257 N.C. 760, 127 S.E.2d 531. The judge has reasonable discretion in making the determination, and his decision will not be disturbed in the absence of some error of law. Tayloe v. Carrow, 156 N.C. 6, 72 S.E. 76.
In the instant case there is no finding that the 1250 acres of land cannot be divided so that seven-tenths in value could be allotted to plaintiffs and three-tenths in value to defendants. And if such finding had been made, it would not find support in any probative evidence in the record. At most the evidence would justify a finding that an actual division of the land would entail more time and expense than a smaller tract of uniform condition and valuea circumstance to be considered by the court, but which standing alone would be insufficient basis for a partition by sale.
The crucial finding of fact is set out in numbered paragraph 10: "That from an economic standpoint it is in the best interest of the petitioners * * * that the lands be sold as a whole, and an actual partition of said lands will cause financial detriment to those who want to sell, the Court being of the opinion and finding as a fact that the petitioners will receive more from the sale of the lands as a whole than they will be able to receive from the sale of that *584 portion of the lands which would be allotted to them in an actual partition thereof." Based upon this finding the judge concluded "that an actual partition of the lands cannot be made without injury to some or all of the parties interested."
It is extremely doubtful that there is "satisfactory proof" of the matters set out in paragraph 10 of the judgment. Plaintiffs paid at the rate of $40 per acre in 1962 for seven-tenths interest in the Groves property. Plaintiffs' witness Hearne, testifying in October 1963, stated that the property was worth $65 per acre. A 75-acre tract, similar in character to the subject property and located about a mile therefrom, was sold in 1963 at the price of $100 per acre. A tract adjoining the Groves property sold at public auction for $65 per acre. A 200-acre tract, similar in character to the Groves property and adjoining it, sold for $60 per acre. The owner of a 234-acre tract, which adjoins the subject property, refused an offer of $75 per acre. The court found as a fact that seven persons, organizations and corporations have, since plaintiffs bought shares of the property, indicated an interest in purchasing the property as a whole, but there is no finding and no evidence to support a finding as to what they would be willing to pay. The court also found "that no interest has been indicated by any person, firm or corporation in the purchase of any less than the whole 1250-acre tract of land." This is contrary to uncontradicted evidence in the record. The trustee bank received, without request therefor, a number of bids for defendants' interest in the land and purported to give to a person "a refusal to purchase." A number of persons expressed an interest in part of the subject land, but are not financially able "to swing the entire deal." The court further found as a fact "that when the timber was sold from said lands in 1950, said timber was offered for sale in separate parcels and then as a whole, and brought a higher price as a whole than in separate parcels." This finding is irrelevant. The considerations which would cause a purchaser to buy a large rather than a small tract of timber, to be cut and removed from the land, have no relation to the considerations which would cause one to purchase land on which there is no "sawable" timber of value. The evidence discussed in this paragraph does not support the finding that the locus in quo would sell at a better price as a whole than if divided and offered in separate tracts.
A number of plaintiffs' witnesses were permitted, without objection, to express the opinion that the property would bring a better price if sold as a whole than if sold in smaller tracts. The witnesses were not offered as experts and no effort was made to qualify them as such. No factual basis was laid for the opinion. One or more of the witnesses stated that they knew of no person interested in buying less than the whole tract. "* * * opinion is inadmissible whenever the witness can relate the facts so that the jury (here the judge) will have an adequate understanding of them and the jury is as well qualified as the witness to draw inferences and conclusions from the facts." Stansbury: North Carolina Evidence, s. 124, pp. 243-4. It is true that "If opinion evidence is admitted without objection it is entitled to consideration by the jury, and must be considered by the judge in a ruling upon a motion to nonsuit." ibid., p. 284. But it is assumed that when the court is trier of the facts it will not consider incompetent evidence or be mislead by that which is inconclusive. Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668. Quaere: May a judge, as trier of the facts, accept as "satisfactory proof," of a matter alleged and essential to the determination of the question presented, opinion evidence patently incompetent, though not objected to? Though the answer to this query is not necessary for decision in the case at bar, it would seem that the answer is "no", unless the failure to object be deemed an admission of the truth of the opinion. We note further that witnesses were permitted to state that the property could not be divided without injury to some or all of *585 the cotenants. Thus they were permitted to draw a conclusion upon the facts and the law as to the ultimate question for decision by the court. Such opinions prove nothing. Proof must be presented and facts found by the judge which will, after proper application of legal principles, support such conclusion before even the judge may make such determination.
Even if the findings of fact in paragraph 10 of the judgment are supported by evidence, these findings are insufficient to support the conclusion that an actual partition cannot be made without injury to some or all of the tenants in common. If the land will bring more as a whole, how much more? Will the difference be so material and substantial as to make an actual partition unjust and inequitable? The findings do not answer these questions. There is much more involved here than competitive bidding, how property can be sold to best advantage, or how to assure plaintiffs of the most profit on their investment. It is the policy of the law that land owned in common be divided and that the cotenants hold their shares of the land in severalty and enjoy the possession and fruits thereof, unless an actual partition will work a substantial inequity and injustice.
Extensive research has failed to bring to light a case factually comparable in which a sale for partition was allowed. Hale v. Thacker, supra, is factually similar; those desiring a sale contended that the property would sell for a better price as a whole. The court stated: "* * * the record falls far short of a showing which justifies a sale of the land in question. * * * the owner of a share in land which can be conveniently partitioned has the right to be the judge of his own interest, and he has the right to insist upon his common-law right to partition in kind, so long as that right is not exercised in such a way as to unduly prejudice the rights of his co-owners. It is well known that many considerations, other than monetary, attach to the ownership of land, and courts should be, and always have been, slow to take away from owners of real estate their commonlaw right to have the same set aside to them in kind." See also Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950).
The cause is remanded to superior court for a rehearing on the question whether an actual partition can be made without injury to some or all of the parties interested, and for further proceedings in accordance with law.
Error and remanded.
