229 S.E.2d 222 | N.C. Ct. App. | 1976
Sallie M. SCOTT (widow) et al., Plaintiffs,
v.
Ruby Juanita Scott MOSER et al., Defendants.
Court of Appeals of North Carolina.
*225 Folger & Folger by Fred Folger, Jr., and Larry Bowman, Mount Airy, for plaintiffs-appellees.
Allen, Henderson & Allen, Elkin, for Hoke F. Henderson, guardian ad litem, appellant.
PARKER, Judge.
The trial court rested its judgment upon two grounds: first, that the plaintiffs were under a mutual mistake of fact and of law such as to entitle them to have the deeds reformed; and second, that the deeds were cross deeds of partition which conveyed no rights to the wards of the appellant. We find the second ground sufficient to support the judgment and affirm.
When G. Wes Scott died intestate, fee simple title to his lands vested in his three children, Gray, Irene, and Maude, as tenants in common. (Their title was, of course, subject to their mother's dower rights, but such rights were released in exchange for their agreement to support their mother; the record indicates that this agreement has been honored and no question concerning the widow's dower rights has been raised on this appeal.) The three children, being the fee simple owners of the lands as tenants in common, agreed among themselves upon a division of the lands into three portions and agreed which portion each should receive. Cross deeds of partition were executed to carry out this partition agreement. The deed for Maude's share (Exhibit B) was made to her and to her daughter. The deed for Irene's share (Exhibit C) was made to her and to her husband. All three deeds purported to convey remainder interests to appellant's wards after a life estate or estates in the named grantee or grantees.
We find decision of this case controlled by the decision in Harrison v. Ray, 108 N.C. *226 215, 12 S.E. 993 (1891). In that case one Oakley Harrison and his brothers and sisters divided lands, inherited by them from their father, by deeds of partition. The deed for Oakley Harrison's share was made to him and his wife, Juda. Thereafter Oakley died and Juda married the defendant, David Ray. The plaintiff's, who were Oakley Harrison's children by his first wife, brought suit against Juda and her new husband, David Ray, to recover the land described in the deed to Oakley and Juda. They alleged that the name of Juda was inserted in the deed by mistake and inadvertence of the draftsman. At the trial, the court submitted as the first issue whether the name of Juda was inserted in the deed by mistake. The jury answered the issue against the plaintiffs, who then moved for judgment n.o.v. and excepted to refusal of the motion. On appeal, our Supreme Court reversed. The opinion of the Court, written by Clark, J. (later C. J.), contains the following:
"[T]he deed to Oakley Harrison and wife operated merely as a partition of the lands, and conveyed no estate to them. The land in controversy was the share of Oakley Harrison in the lands inherited by him and his brothers and sisters. This tract was ascertained to be his share by the consent partition, which was had in lieu of legal proceedings to appoint commissioners to mark it off and assign it. It is not claimed that Juda, the wife, had any interest in the land so that anything should have been assigned her, but it is contended that by Oakley Harrison's direction the deed was drawn to him and his wife jointly. Suppose this to be so. The grantors were not conveying any additional estate or interest to Oakley Harrison. He had bought nothing and they were not making him a present of anything. The deed only assigned to him in severalty and by metes and bounds what was already his. The grantors conveyed no part of their shares. They had no interest in the share embraced in the deed to Oakley Harrison, and could convey no interest therein to him or any one else. It was his by the conveyance from his father. He received no title nor estate by virtue of the deed from his brothers and sisters, nor could his wife. His direction to the other heirs (if given) to convey to himself and wife could not have the effect to make the deed a conveyance of anything to his wife, when it was not such as to himself. The title being already in him the deed merely designated his share by metes and bounds and allotted it to be held in severalty. No title passed by the deed, nor by any of the deeds. `Partition makes no degree. It only adjusts the different rights of the parties to the possession. Each does not take the allotment by purchase, but is as much seized of it by descent from the common ancestor as of the undivided share before partition.' Allnatt on Partition, 124. The deed of partition destroys the unity of possession, and henceforward each holds his share in severalty, but such deed confers no new title or additional estate in the land. 2 Bl. [Com.], 186. Hence it is that in partition, whatever the form of the deed, there is an implied warranty of title by each tenant to all the others. Huntley v. Cline, 93 N.C. 458." Harrison v. Ray, supra at 216-217, 12 S.E. at 993.
The principles announced in Harrison v. Ray, supra, have been consistently followed in the years since that case was decided. For example, in Elledge v. Welch, 238 N.C. 61, at page 66, 76 S.E.2d 340, at page 344 (1953), Johnson, J., speaking for our Supreme Court, said:
"Deeds between tenants in common, when the purpose is partition, operate only to sever the unity of possession and convey no title. Each party holds precisely the same title which he had before the partition, and neither cotenant derives any title or interest from his cotenants, the theory being that the undivided interest held by each in the whole tract is severed by the partition from the interests of the others and concentrated in the parcel set apart to each, with the interests of the others being excluded therefrom. (Citations omitted).
*227 Accordingly, a deed made by one tenant in common to a cotenant and the latter's spouse in partitioning inherited land or land held as a tenancy in common, does not create an estate by the entirety or enlarge the marital rights of the spouse as previously fixed by law."
Applying the principles announced in Harrison v. Ray, supra, and in Elledge v. Welch, supra, to the case now before us, the cross deeds of partition which were executed between the tenants in common operated only to sever the unity of possession. They conveyed no title. Thus, neither Maude's daughter, nor Irene's husband, nor any ward represented by the defendant guardian ad litem obtained any title or interest by virtue of any of the partition deeds.
The judgment appealed from is
Affirmed.
BROCK, C. J., and ARNOLD, J., concur.
