EPLEY V. EPLEY. PER CURIAM: We have carefully examined the record in this case, and, while it appears that there was some irregularity in the introduction of testimony, we fail to see how the defendant was in the least prejudiced thereby. The evidence did not warrant the comment of counsel, and there was no error on the part of the Court in stopping the same. Affirmed. PETER EPLEY et al. v. JOHN EPLEY et al. Will-Partition-Executors-Tenants in Common-Posses sion-Pleadings. 1. A will by which land is devised to C. for life, and after her death it is to be divided among children, does not authorize a sale by the executors. 2. When a petition of tenants in common for sale of land fails to allege possession, objection made for the first time in the Supreme Court will be disregarded. This was a SPECIAL PROCEEDING for partition of land, heard on appeal from Clerk before Armfield, J., at Fall Term, 1892, of BURKE Superior Court. This action was brought by plaintiffs as heirs at law and devisees of Peter Epley for a partition of the lands known as the Catharine Epley tract. That Peter Epley, Willis Epley, James Epley and Fannie Morrison (wife of John Morrison), the plaintiffs above named, and John Epley, Jacob Epley and Mary Parker are tenants in common in fee of the tract of land hereinafter described, each owning an undivided one-seventh interest therein in fee. The defendant's executors answer, and allege 1. That the Clerk has no jurisdiction in this action, for the reason that the same involves a construction of the will of their testator, Peter Epley. EPLEY V. EPLEY. 2. That the will of their said testator (see record, pages 23 to 29, inclusive) authorized and empowers them to make sale of said lands, which they are proceeding to do under said will, and the plaintiffs are therefore not entitled to partition in this proceeding. His Honor being of opinion that the Clerk had jurisdiction, and that the will of Peter Epley did not authorize a sale of said land by said executors, gave judgment accordingly, to which judgment and rulings defendant excepted, and appealed to the Supreme Court. 8. That the petition is insufficient and fails to show any right to partition by plaintiff, in that it does not allege that any or either of them are in the possession of the land which they seek to divide. Mr. S. J. Ervin, for plaintiffs. Mr. Isaac T. Avery, for defendants. SHEPHERD, C. J.: We think it very clear that the will did not authorize a sale of the land by the executors. The land devised is not to be sold to pay debts, legacies, costs or charges of administration, nor is it to be sold with personal property, nor are the proceeds of sale mixed with the personal estate. It was devised to Catharine for her life, and upon her death it was to be sold and the proceeds equally divided among the children then living. There is no express authority given the executors, and none can be implied from the provisions of the will. Bentham v. Weltshire, 4 Mass., 44; Foster v. Craige, 2 Dev. & Bat. Eq., 209; Council v. Averett, 95 N. C., 131; Vaughan v. Farmer, 90 N. C., 607. It is true that the petition does not allege that the petitioners are entitled to the immediate possession, but it alleges that they are tenants in common in fee. This, at most, is but a defective statement of a cause of action, and in the case on appeal, signed by counsel, it does not appear that the point was insisted upon SINCLAIR v. RAILROAD Co. in the Court below. The motion to dismiss in this Court is therefore disallowed. Besides, it is not like the case of Alsbrook v. Reid, 89 N. C., 151, cited by defendant, in which it affirmatively appeared that the petitioners were not entitled to the possession until after the determination of an existing estate for life. Affirmed. P. J. SINCLAIR et al. v. THE WESTERN NORTH CAROLINA RAILROAD COMPANY. Amendment-Pleadings-Retraxit-Appeal-The Code, § 273. 1. In an action by two tenants in common to have the value of lands required in construction of defendant's right-of-way assessed, and after the action had been pending for several years one of the plaintiffs entered a retraxit, and the Court allowed the other to amend his description of land so as to embrace his part still the subject of suit: Held, no error. 2. An order of amendment is not appealable. This was a MOTION to amend pleadings, heard before Graves, J., at the Spring Term, 1892, of MCDOWELL Superior Court. Defendant objected to Court allowing amendment and appealed. Messrs. P. J. Sinclair and W. H. Malone, for plaintiff. Messrs. D. Schenck and F. H. Busbee (by brief), and G. F. Bason, for defendant. CLARK, J. It appears that both complaint and answer had been withdrawn at previous terms and amended complaint and answer filed without exception. Those matters SINCLAIR V. RAILROAD CO. are therefore not before us. Upon such amended complaint and answer (as the pleadings had stood since 1883), this was an action by two tenants in common praying the appointment of commissioners to assess and value the lands required by the defendant for the right-of-way. At Spring Term, 1892, one of the plaintiffs entered, without exception, a retraxit which specified that it was in no way to affect the rights of the other plaintiff. Thereupon the Court permitted the remaining plaintiff to amend by letting the suit stand in the name of such plaintiff alone, also by reducing the description of the land (which it seems had been divided between the two original plaintiffs) to the land claimed by the remaining plaintiff, and omitting some recitals as to prior proceedings, which the motion alleged had been inserted in the complaint by mistake, as such prior proceedings had no reference to this tract. After hearing argument, the Court allowed the amendment upon payment of costs by the plaintiff. The defendant excepted and appealed. The amendment restricting the description of the land to that claimed by the plaintiff remaining in the action, was eminently proper after the retraxit of the other plaintiff. The entry of the retraxit was of itself an amendment as to parties, and had not been excepted to. The omission of the reference in the complaint to other proceedings at another time before the Court, could not prejudice the defendant. These amendments did not change the nature of the action, and hence were within the discretion of the trial court, and not reviewable. The Code, § 273, and the numerous cases cited under that section in Clark's Code. Besides, the leave to amend, if it had been reviewable, "neither terminated the action nor deprived the appellant of any substantial right which he might lose if the order was not reviewed before final judgment. Hence he should have had his exception noted in the record, that it might be MCQUEEN v. BANK. reviewed on an appeal from the final judgment." Clement v. Foster, 99 N. C., 255; Welch v. Kinsland, 93 N. C. 281; Hailey v. Gray, Ibid., 195; Sneeden v. Harris, 107 N. C., 311. Appeal Dismissed. FLORA C. MCQUEEN v. THE PEOPLES NATIONAL BANK OF FAYETTEVILLE. Pleadings-Admissions-Evidence-Trial by Jury-Practice Continuance. 1. When a debt is established by admissions in the answer, the matter pleaded in avoidance should be established affirmatively by evidence. 2. The defendant bank admitted the plaintiff had deposited with it a sum of money, and set up facts in its answer tending to show that the balance not drawn out had been assigned to it, but failed to offer any evidence in support of it: Held, the plaintiff was entitled to recover upon the pleadings. 3. Such ruling is not in contravention of right to have a jury pass upon the issues raised by the pleadings. 4. This Court will not review the ruling of the trial Judge refusing to grant a continuance, where it appeared that the defendants had not had their witnesses subpoenaed, having had ample opportunity so to do. CIVIL ACTION, heard at May Term, 1892, of the Superior Court of CUMBERLAND County, before Boykin, J. The plaintiff filed a verified complaint, in which she alleged that on or about the 19th of April, 1888, she caused to be deposited in the defendant bank "a large sum of money, about five thousand five hundred dollars, the exact amount of which she does not now remember, but is informed and believes it was five thousand four hundred and seventy-five dollars and seventy-eight cents ($5,475.78);" that subse |