Fisher v. Fisher, 217 N.C. 70 (1940)

Feb. 2, 1940 · Supreme Court of North Carolina
217 N.C. 70

GLADYS FISHER, MRS. EDNA F. CANNADY, and MRS. EDNA F. CANNADY, General Guardian of ANNA FISHER, a Minor, and ELLEN FISHER, a Minor, v. LOIS RUTH FISHER, and VICTOR STOUT, Guardian Ad Litem for WILLIAM H. FISHER, JR., a Minor, and LOIS RUTH FISHER, Administratrix of the Estate of W. HOMER FISHER, Deceased, and SYDNOR DeBUTTS, Trustee.

(Filed 2 February, 1940.)

1. Husband and Wife § 4b—

A conveyance of land by a wife to her husband is void when the acknowledgment fails to comply with C. S., 2515, and the acknowledgment is fatally defective if the probating officer fails to certify that, at the time of its execution and the wife’s privy examination, the deed is not unreasonable and injurious to her.

3. Same—

A deed by husband and wife conveying lands held by them by entireties to a trustee for the use and benefit of the husband is a conveyance of land by a wife to her husband within the meaning of C. S., 2515.

3. Same — Defective acknowledgment of deed conveying wife’s interest in land to her husband held not cured by piior deed of separation properly executed.

Husband and wife executed deed to land held by them by entireties to a trustee for the use and benefit of the husband, which deed was not acknowledged as required by O. S., 2515. They also executed deed of separation, properly acknowledged in conformity with the statute, which deed of separation bore a date five days prior to that of the deed to the trustee and was acknowledged one day before the deed to the trustee was acknowledged. The deed of separation did not refer to lands held by them by entirety, the only reference to real estate therein being that each should hold the land then owned or thereafter acquired by them, respectively, free from the claims of the other, and the deed of separation contained no indicia that the deed to the trustee should be executed as a part of the separation agreement. Held: The properly acknowledged deed of separation does not cure the defective acknowledgment of the subsequent deed to the trustee nor render the certificate of acknowledgment of the deed to the trustee unnecessary, and the contention that the clerk must have passed upon the deed to the trustee and included same in his acknowledgment to the deed of separation is untenable.

4. Same: Husband and Wife § 18a—

The right of a wife to convey her real estate as a free trader without consent of her husband attaches upon the registration of the deed of separation, and a deed of separation cannot affect the wife’s conveyance of her land prior to the date the deed of separation is filed for registration, O. S., 2529. It would seem that O. S., 2529, applies to conveyances by the wife to third persons and not to conveyances by her to her husband, C. S., 2515.

*715. Husband and Wife § 4b — Improper acknowledgment in deed held not cured by wife’s subsequent quitclaim deed to trustee or trustee’s deed to husband.

Husband and wife executed deed to lands held by them by entireties to a trustee for the benefit of the husband, which deed was not acknowledged as required by C. S., 2515. Thereafter they were divorced a vinculo and each married a second time. The wife and her second husband executed a quitclaim deed to the trustee reciting that the parties wished to cure any defect in the acknowledgment in the former deed to the trustee. Thereafter the trustee conveyed the property to the husband and his second wife by deed reciting that the purpose of the said trust could thereby be best effected. Held: Neither the recitals in the quitclaim deed nor those in the deed from the trustee to the husband affected the requirements of the statute or supplied the deficiency in the acknowledgment of the original deed to the trustee, and said deed is void, and the grantors therein continue to hold the land by entireties until the granting of the absolute divorce, when they become tenants in common, each owning a one-half undivided interest therein in fee simple.

6. Quieting Title § 2—

Upon demurrer to the complaint in an action to quiet title the court is required to ascertain only if the complaint is sufficient to allege a cause of action under C. S., 1743, and when it appears from the facts alleged that plaintiffs are some of the heirs at law of a person who died intestate seized of a one-half interest in the locus in quo, and assert title thereto, the demurrer of the defendants in possession of the land is properly overruled.

Appeal by tbe defendant, Lois Ruth Fisher, from Grady, Jat April Term, 1939, of Guileoed.

Civil action instituted under C. S., 174-3, to quiet title and to remove cloud upon title arising from adverse claim of defendant, Lois Ruth Fisher, that she is surviving tenant of an estate by the entirety in lands in controversy, heard upon demurrer to complaint filed by her individually, and as administratrix of W. Homer Fisher, deceased.

Plaintiffs allege substantially these facts:

1. Plaintiffs are all of the children of the marriage of W. Homer Fisher, now deceased, and his first wife, Oleo M. Fisher, who were divorced absolutely on 15 June, 1933.

2. W. Homer Fisher, who on 22 June, 1933, was lawfully married to defendant, Lois Ruth Fisher, to which union the defendant, "W. Homer Fisher, Jr., aged five years is the only child, died intestate 14 July, 1938, survived by said child and by his said wife, who is the administratrix of his estate.

3. W. Homer Fisher and Cleo M. Fisher, his wife, were the owners as tenants by the entirety of three tracts of land situate in Guilford County, here in question.

*724. On. 16 December, 1931, W. Homer Eisber and bis wife, Oleo M. Eisber, executed a deed of separation, wbicb was acknowledged 23 December, 1931, before tbe clerk of tbe Superior Court in tbe manner provided by 0. S., 2515. It is recited therein tbat: “Whereas tbe said parties have agreed among themselves as to tbe custody of tbe children and a settlement of all property rights and difference existing between them,” but tbe lands in question are not mentioned specifically or by inference. Tbe only references therein to any land are briefly stated as follows: Said party of tbe second part (tbe wife) is to bold all real estate and personal property wbicb she may now own, or hereafter acquire, free from all rights of tbe husband, from curtesy or any rights arising from tbe marital relation; and tbe husband is to have and to bold any real or personal property wbicb be may now own, or hereafter acquire, other than tbat hereby specifically mentioned, free from any claim on tbe part of bis wife; and each agree tbat be or she will at all times execute and do all such assurances and things as tbe other of them, bis or her heirs, executors, administrators or assigns, shall reasonably require for tbe purpose of giving full effect to these presents, and tbe covenants, claims and provisions herein contained. This agreement was filed for registration on 12 August, 1932, and registered.

5. On 21 December, 1931, W. Homer Eisber and wife, Oleo M. Fisher, executed an instrument purporting to be a deed of trust to Sydnor DeButts, Trustee, in which they undertook to convey to him the lands in question for tbe sole use and benefit of W. Homer Eisber, bis heirs, executors or administrators, granting to tbe trustee “absolute discretion and power to sell, mortgage, exchange, convey or dispose of tbe said property, and reinvest tbe proceeds of tbe said sale in such other property as the said trustee may deem advisable, and shall pay the income from tbe said property, or from tbe property wbicb may be exchanged for tbe said property, to tbe said W. Homer Eisber, or to whomsoever be designates.” Tbe instrument contained covenants of seizin, right to convey, freedom from encumbrances and general warranty, and was acknowledged before the clerk of Superior Court on 24 December, 1931, but tbe certificate of tbe clerk fails to comply with section 2515 of Consolidated Statutes of 1919. It was filed for registration 28 November, 1932, and registered. W. Homer Eisber did not thereafter execute a ■ deed to said trustee conveying any interest in tbe land in question.

6. Sydnor DeButts, Trustee, has at no time taken possession of said lands, or attempted in any manner to execute tbe duties imposed upon him under said instrument; but, to tbe contrary, up to tbe time of bis death, W. Homer Fisher continued to occupy, possess and enjoy tbe same in tbe same manner as be bad previously done, and as if tbe said instrument bad not been executed.

*737. On 19 June, 1933, Oleo M. Fisher was lawfully married to Luther D. Hatchell; and on 30 June, 1936, they, as husband and wife, executed a deed to Sydnor DeButts “as trustee as hereinafter stated,” by which they remised, released, and quitclaimed to him, his successors and assigns, all their right, title and interest in and to the lands in question. In this deed, after referring to the said instrument executed by W. Homer Fisher and wife, Oleo M. Fisher, to Sydnor DeButts as trustee, and identifying her as now the wife of Luther D. Hatchell, it is recited that: Whereas, the question has been raised as to the technical form and acknowledgment of said former deed; and whereas, the grantors herein claim no interest in said lands and desire to correct said former mistake, if such there be.” The habendum clause in this deed is as follows: “To have and to hold, said lands and premises, together with all privileges and appurtenances thereunto belonging to him, the said party of the second part as trustee, upon the trusts and for the uses and purposes set out in said former deed to him, free and discharged from all right, title, claim or interests of the parties of the first part.” This deed was properly acknowledged and duly registered 13 August, 1936.

8. On 19 May, 1938, Sydnor DeButts, Trustee, executed a deed to W. Homer Fisher and wife, Lois Euth Fisher, in which, after referring to the separation agreement, to the deed of trust from W. Homer Fisher and wife, Oleo M. Fisher to Sydnor DeButts, Trustee, to the divorce of W. Homer Fisher and Oleo M. Fisher, and to the deed from Oleo M. Hatchell and husband to Sydnor DeButts, Trustee as hereinabove stated, and after reciting that' “Whereas the said W. Homer Fisher has requested that the said trustee convey to said W. Homer Fisher and his wife, Lois Euth Fisher, the legal title to said lands; and, whereas, the said trustee has removed from the State of North Carolina to the State of Florida; and whereas, in his opinion the purpose of said trust could be best carried out by such conveyance of the legal title to said property,” he undertook to convey to them the land in question. This deed, after being duly acknowledged, was filed for registration 1 June, 1938, and registered.

9. Lois Euth Fisher is now in the possession of said lands, claiming to own same in fee simple, as the surviving wife of W. Homer Fisher under the said deed from Sydnor DeButts, Trustee, to W. Homer Fisher and wife, Lois Euth Fisher.

10. Plaintiffs, while not in possession of any part of the lands, assert title thereto and claim an interest in the same as heirs at law of W. Homer Fisher, deceased; and if the deed from the trustee to said Fisher and his wife, the defendant, Lois Euth Fisher, does not convey the title in fee, as an estate by the entirety as claimed by said defendant, it is a cloud upon the title of plaintiffs.

*7411. It is not necessary tbat tbe lands be sold to create assets to pay debts of tbe estate.

Upon sucb allegations plaintiffs pray judgment inter alia:

(1) Removing tbe claim of Lois Rutb Eisber as a cloud upon tbe title of all tbe beirs of W. Homer Eisber, deceased; and (2) tbat tbe deeds from Sydnor DeButts to W. Homer Eisber, and bis wife, Lois Rutb Eisber, be declared ineffective to create an estate by tbe entirety; and (3) for tbe appointment of a resident trustee in tbe place of Sydnor DeButts, Trustee, nonresident.

Defendant Lois Rutb Eisber (a) as administratrix demurs to tbe complaint for tbat it does not state a cause of action in tbat it affirmatively appears tbat it is not necessary to sell tbe lands to create assets to pay debts of tbe estate; and (b) individually, for tbat tbe complaint does not state any facts tending to sbow tbat tbe plaintiffs bave title to, or any interest in tbe property in question, but tbat, on tbe contrary, tbe facts alleged sbow affirmatively tbat title thereto is vested in ber.

Tbe court entered judgment sustaining tbe demurrer filed by Lois Rutb Eisber, administratrix, but overruling tbat filed by ber individually. Lois Rutb Fisber appeals therefrom to tbe Supreme Court and assigns error.

Harry B. Stanley for plaintiff, appellee.

Moseley ■& Holt and Hoyle & Hoyle for defendant, appellant.

Winborne, J.

Section 1743 of tbe Consolidated Statutes of 1919, under which plaintiffs are proceeding, provides tbat an action may be brought by any person against another who claims an estate or interest in real property adverse to him for tbe purpose of determining sucb adverse claim. “Tbe law . . . was designed and intended to afford a remedy wherever one owns or has an estate or interest in real property, whether be is in or out of possession, and another wrongfully sets up a claim to an estate or interest therein which purports to affect adversely tbe estate or interest of tbe true owner and which is reasonably calculated to burden and embarrass sucb owner in tbe full and proper enjoyment of bis proprietary rights, including tbe right to dispose of tbe same at its fair market value.” Hoke, J., in Satterwhite v. Gallagher, 173 N. C., 525, 92 S. E., 369.

Applying this as tbe test, do tbe allegations of fact in tbe complaint, when admitted to be true for tbe purpose of passing upon tbe demurrer, state a cause of action in behalf of tbe plaintiffs and against tbe defendant, Lois Rutb Eisber ? Tbe correctness of tbe ruling of tbe court below upon tbe demurrer of defendant, Lois Rutb Fisber, which challenges tbe sufficiency of such allegations, is tbe only question properly determinable *75on tbis appeal. We are of opinion and bold that tbe demurrer was properly overruled.

As tbe question now presented only involves a matter of pleading, we will consider only sucb of tbe allegations of fact, admitted for tbe purpose, as will determine tbe sufficiency of tbe complaint to state a cause of action.

It is sufficient to consider tbis question only: Is tbe deed from W. Homer Fisber and wife, Oleo M. Fisber, to Sydnor DeButts, Trustee, for tbe use and benefit of W. Homer Fisber, void because tbe certificate of tbe clerk before whom tbe deed was acknowledged fails to comply with tbe provisions of C. S., 2515?

Tbis Court has uniformly held that tbe deed of a wife, conveying land to her husband, is void unless tbe probating officer in bis certificate of probate certify that, at tbe time of its execution and her privy examination, tbe deed is not “unreasonable or injurious” to her. Wallin v. Rice, 170 N. C., 417, 87 S. E., 239; Foster v. Williams, 182 N. C., 632, 109 S. E., 834; Davis v. Bass, 188 N. C., 200, 124 S. E., 566; Best v. Utley, 189 N. C., 356, 127 S. E., 337; Garner v. Horner, 191 N. C., 539, 132 S. E., 290; Caldwell v. Blount, 193 N. C., 560, 137 S. E., 578; Capps v. Massey, 199 N. C., 196, 154 S. E., 52; Bank v. McCullers, 201 N. C., 440, 160 S. E., 494, and numerous other cases.

Tbe principle applies to deed by husband and wife to a trustee for tbe use and benefit of tbe husband conveying lands held by them as tenants by tbe entirety. Davis v. Bass, supra; Best v. Utley, supra; Garner v. Horner, supra. While these general principles of law are not controverted, tbe defendant contends that tbe deed to tbe trustee is covered by tbe certificate to tbe deed of separation, which is in conformity with tbe statute. It is argued that from an examination of tbe deed of separation it is manifest that at tbe time of its execution Fisber and bis wife bad agreed upon a complete settlement of all their property rights; that tbe deed to tbe trustee was an essential part of tbe property settlement; and that, hence, it must have been passed upon by tbe clerk and included in bis certificate to tbe deed of separation, thereby making a separate certificate under C. S., 2515, unnecessary for tbe deed to tbe trustee. In tbis connection, it is pertinent to note that tbe deed of separation appears to bear date five days previous to that of tbe deed to tbe trustee, and to have been acknowledged one day before tbe deed to tbe trustee was acknowledged. It is further noteworthy and significant that while in tbe premises in tbe deed of separation it is recited that “tbe parties have agreed among themselves as to ... a settlement of all property rights,” tbe agreement makes no reference to property held by them as tenants by tbe entirety, and is limited in so far as real estate is concerned, to that “which she may now own or hereafter acquire,” and to “that which be may now own or hereafter acquire.”

*76Careful examination fails to reveal any indicia in tie deed of separation tiat tie deed to tie trustee siould be executed as a part of tie separation agreement, nor is there in tie deed to tie trustee any reference to tie deed of separation. We must consider tie instruments as they are written.

Further in this connection defendant inquires whether after tie execution and certification of tie deed of separation, a certificate under C. S., 2515, is required for a conveyance from tie wife to tie husband, or to a trustee for his benefit, and refers to C. S., 2529. Tiat statute, if it be conceded tiat it is otherwise applicable to the instant case, provides, inter alia, tiat tie wife, who is living separate from her husband under deed of separation, shall be deemed and held to be a free trader from tie registration of such deed, and may convey her real estate without tie assent of her husband. But in the case at hand tie deed of separation was not filed for registration until 12 August, 1932, many months after tie deed to the trustee was executed and acknowledged. Furthermore, while it is not necessary here to so hold, tie wording of tie statute indicates tiat it affects and is only intended to affect deeds of 'married women to third persons, and not those she has attempted to make to her husband. See Foster v. Williams, supra.

Nor do tie recitals in either tie quitclaim deed executed by Mrs. Hatchell and husband to Sydnor DeButts, Trustee, or in tie deed from DeButts, Trustee, to W. Homer Fisher and wife, change tie statutory requirement, or supply tie deficiency.

Hence, we are of opinion and hold tiat tie court below correctly ruled tiat tie deed from Fisher and wife to tie trustee is void, and conveyed nothing, tiat tie tenancy by tie entirety continued to exist between W. Homer Fisher and his wife, Cleo M. Fisher, and tiat, upon absolute divorce being granted, they became tenants in common, each owning an undivided one-half interest therein in fee simple. McKinnon v. Caulk, 167 N. C., 411, 83 S. E., 559. See, also, Davis v. Bass, supra.

Tie allegations are sufficient to indicate tiat W. Homer Fisher did not thereafter make any conveyance of this one-half undivided interest, tiat when he died intestate he was seized of it, and tiat plaintiffs, being some of his heirs at law, assert title thereto. -Also tie allegation of cloud upon tie title of plaintiffs thereto is sufficient to meet legal requirements. Thus plaintiffs have stated a cause of action. Therefore, it is inopportune to extend tie consideration to other points discussed in briefs filed on this appeal, as to which we express no opinion.

For tie reasons herein stated, tie judgment overruling tie demurrer'is