Garris v. Tripp, 192 N.C. 211 (1926)

Sept. 29, 1926 · Supreme Court of North Carolina
192 N.C. 211


(Filed 29 September, 1926.)

•1.. Tenants in' Common — Deeds and Conveyances — Possession—Title.

: -Where tenants in common divide the lands held among themselves by deed, the.deed so given is for the purpose of severing the tenancy and ' does not affect the title under which they hold.

2. Same — Husband and Wife.

Two sisters are tenants in common of a tract of land; one sister and her' husband releases a one-half interest therein by a deed to the other sister and. her husband: Held, only the tenancy is secured and no new estate is created.

Appeal by defendants from Sinclair, Jat April Term, 1926, of tbe Superior Court of WayNe County.

D. H. Bland and W. S. O’B. Robinson for plaintiffs.

Dickinson & Freeman for defendants.

Abams, J.

This case was beard on an agreed statement of facts. Prior to 10 March, 1870,.Winnifred Tripp (who-before ber marriage to Theophilus Tripp was Winnifred Garris), and Mourning Garris, her sister, were the owners in fee and in possession of 40 acres of land allotted to them in the division of their. father’s estate and subject to the dower interest of their mother. On 10 March, 1870, Theophilus Tripp and his wife, Winnifred Tripp, Mourning Garris, and Smithie Garris, the widow, conveyed this land to John R. Smith in exchange for another tract containing 228 acres, which was conveyed by John R. Smith and his wife to Winnifred Tripp and Mourning Garris. Sometime after 10 March, 1870, and before 27 December, 1871, Mourning Garris married Austin Williams. At the date last named Austin Williams and his wife, Mourning Williams, conveyed to Theophilus Tripp and Winnifred Tripp, his wife, 114 acres (described by metes and ■bounds), which is one-half of the 228-acre tract; and at the same time Theophilus Tripp and his wife conveyed to Austin Williams and his wife 114 acres, the remainder of the tract. Winnifred Tripp died about 18 years ago and Theophilus Tripp on 6 April, 1924. One child, born ■to' Théophilus Tripp and- his wife, died in the lifetime of its mother. Thé plaintiffs are the heirs of Winnifred Tripp and the defendants are the heirs of Theophilus Tripp. Since the death of Theophilus Tripp the defendants have been in possession of the 114 acres described in the deed' executed by" Austin. Williams and his wife, to Theophilus Tripp *212and Ms wife, receiving tbe rents and profits. Tbe plaintiffs contend that they are tbe owners in fee and entitled to recover tbe possession of tbis land as tbe beirs of Winnifred Tripp; tbe defendants contend tbat tbey are tbe owners thereof as tbe beirs of Theophilus Tripp.

At tbe trial of tbe cause it was adjudged tbat tbe plaintiffs are tbe owners and entitled to tbe immediate possession of tbe land in controversy; whereupon tbe defendants excepted and appealed. Tbe judgment must be affirmed. John R. Smith and bis wife conveyed tbe 228-acre tract to Winnifred Tripp and Mourning Garris, who then held tbe land as tenants in common. It was taken in exchange and evidently in substitution for land which bad descended to them from their father. Tbe deeds mutually executed by these tenants and their husbands merely severed tbe tenancy and did not create a new estate. “It is one of tbe essentials of tbe peculiar estate by entireties sometimes enjoyed by bus-band and wife, tbat tbe spouses be jointly entitled as well as jointly named in tbe deed. Hence if tbe wife alone be entitled to a conveyance, and it is made to her and her husband jointly, tbe latter will not be allowed to retain tbe whole by survivorship. And it matters not if tbe conveyance is so made at her request, because being a married woman she is presumed to have acted under tbe coercion of her husband.” Sprinkle v. Spainhour, 149 N. C., 223. It is therefore manifest tbat tbe deed from Williams and bis wife to Theophilus Tripp and bis wife did not convey an estate by tbe entirety. Harrison v. Bay, 108 N. C., 215; Carson v. Carson, 122 N. C., 645; Harrington v. Rawls, 131 N. C., 39; ibid., 136 N. C., 65; Speas v. Woodhouse, 162 N. C., 66; Kilpatrick v. Kilpatrick, 176 N. C., 182, 185.