Burton v. Cahill

• Decision Date: 10 November 1926
• Docket Number: 370.
• Citation: 135 S.E. 332,192 N.C. 505
• Parties: BURTON et al. v. CAHILL et al.
• Court: North Carolina Supreme Court

135 S.E. 332

192 N.C. 505

BURTON et al. v. CAHILL et al.

No. 370.

Supreme Court of North Carolina

November 10, 1926

Appeal from Superior Court, Rockingham County; Webb, Judge.

Partition by Annie L. Burton and others against Katie L. Cahill and others. From the judgment, both parties appeal. Reversed.

Whenever as a class, beneficiaries are individually named or designated by relationship to some ancestor living at date of will whether testator or another they share per capita.

On the 14th day of March, 1924, Annie L. Burton and her children John A. Burton and Mary Lucy Burton, instituted a partition proceeding against Kate Lewis Cahill and her children, to wit, Myrtle Bailey, Mary Cahill, Benjamin M. Cahill Katherine Cahill, and Benjamin M. Cahill, Sr., guardian ad litem of Dorothy Jane Cahill, a minor. The plaintiffs allege that they owned a one-half undivided interest in the property in controversy, and that the defendants owned a one-half interest in said property; that all the parties were of age except Dorothy Jane Cahill. The defendants answered, resisting the partition of the land in severalty upon the ground that the title to the property constituted a joint tenancy and that partition thereof could not be maintained.

The deed for the property in controversy was made by Robert Lewis and wife on the 28th day of October, 1895, and is as follows:

"This deed made this 28th day of October, 1895, by Robert Lewis and Mary E. Lewis, his wife, of Rockingham county, and state of North Carolina, of the first part, to their daughters, Annie L. Burton and Katie L. Cahill of Stokes county, and state of North Carolina, of the second part, witnesseth:

"That the first party, in consideration of the natural love and affection and a wish to provide for said daughters, have bargained and sold, and by these presents do bargain, sell and convey to said Annie L. Burton and Katie L. Cahill and their children, a certain tract or parcel of land in Mayo township, Rockingham county, state of North Carolina, adjoining the lands of J. H. Cardwell, James Trent, Jim Adkins, Armstrong Gallaway and others, bounded as follows, to wit:

"Being the land known as the 'Lacy Place,' deeded to Robert Lewis by A. H. Gallaway as appears of record at the register's office, Wentworth, N. C., Book 94 of Deeds, page 123, and containing (400) four hundred acres.

"It is the object and intent of this deed to secure to said Annie L. Burton and Katie L. Cahill the above lands during their lifetime, afterward to their children.

"To have and to hold the aforesaid tract or parcel of land and all privileges and appurtenances thereto belonging to the said Annie L. Burton and Katie L. Cahill for life and afterwards their children's only use and behoof forever."

The following judgment was rendered:

"This cause coming on to be heard and being heard before his honor, James L. Webb, and a jury, at the June term, 1926, of the superior court of Rockingham county, and at the close of the evidence, it was agreed that the matters in controversy were questions of law for the court, and that the court being of the opinion

that the plaintiff Annie L. Burton and the defendant Katie Lewis Cahill hold the lands described in the pleadings as joint tenants with the right of survivorship, and that the lands are not subject to partition during the lifetime of either of them, and that the children of the plaintiff Annie Lewis Burton and of the defendant Katie Lewis Cahill take the lands after the death of the joint tenants per stirpes, and not per capita, it is therefore considered, ordered, and adjudged:

"(1) That Annie Lewis Burton and Katie Lewis Cahill hold the lands described in the pleadings as joint tenants with the right of survivorship, and that said lands are not subject to partition during their joint lives or the lifetime of the survivor.

"(2) Upon the death of Katie Lewis Cahill and of Annie Lewis Burton, the children of the said Katie Lewis Cahill will take and hold a one-half undivided interest in said land, and the children of Annie Lewis Burton will take and hold a one-half undivided interest in the said lands.

"It is further considered, ordered, and adjudged that the cost of this action be taxed by the clerk one-half against the plaintiff and one-half against the defendants."

From the foregoing judgment both parties appealed.

J. C. Brown, of Madison, and Manly, Hendren & Womble, of Winston-Salem, for plaintiffs.

McMichael & McMichael and Swink, Clement, Hutchins & Feimster, all of Winston-Salem, for defendants.

BROGDEN J.

Two propositions of law are presented by the record:

(1) Do the life tenants under said deed, to wit, Annie L. Burton and Katie L. Cahill, take said land as joint tenants, for life, with right of survivorship, or as tenants in common?

(2) Do the children of said life tenants take per capita or per stirpes?

The plaintiffs assert that the life tenants take as tenants in common, and that, at the death of the life tenants, the children of the life tenants would take per stirpes. The defendants, upon the other hand, assert that the life tenants take as joint tenants, and that, upon the death of the life tenants, the children would take per capita.

The pertinent portions of the deed of Robert Lewis to the life tenants, Annie L. Burton and Katie L. Cahill, are as follows:

"That the first party in consideration of natural love *** and a wish to provide for said daughters *** do convey to said Annie L. Burton and Katie L. Cahill and their children *** a tract of land, *** containing four hundred acres. It is the object and intent of this deed to secure to said Annie L. Burton and Katie L. Cahill the above land during their lifetime, afterward to their children. To have and to hold the aforesaid tract or parcel of land and all privileges and appurtenances thereto belonging to the said Annie L. Burton and Katie L. Cahill for life and afterwards their children's only use and behoof forever."

"The estate of joint tenancy is purely conventional, i. e., created by act of the parties, and never arises by operation of law." 2 Blck. 180; Mordecai's Law Lectures, vol. 1, 60.

The distinguishing characteristics of the estate are the four unities of interest, title, time, and possession; that is, to say, joint tenancy is one and the same interest, flowing from one and the same conveyance beginning at one and the same time, and held by one and the same undivided possession. 2 Blck. 180; Tiffany, "Real Property," vol. 1, § 191. The predominant incident of joint tenancy at common law was survivorship. This incident of survivorship resulted from the theory that joint tenants together own but one estate, and upon the death of either the title vested in the survivor. Survivorship in joint tenancies was recognized in North Carolina until 1784, when survivorship was abolished. C. S. § 1735. After the enactment of C. S. § 1735, it was urged that joint tenancies were abolished in North Carolina by reason of the fact that survivorship had been destroyed. This contention was made in the case of Rowland v. Rowland, 93 N.C. 214. Ashe, J., says:

"The first point presented for our consideration is the proposition contended for by the plaintiffs' counsel, 'that the act of 1784 abolished the jus accrescendi in joint estates, and that there is no such thing recognized by our law, as survivorship.' But this is a mistake. Joint tenancies were not abolished by the act of 1784 [now C. S. § 1735]."

C. S. § 1735, abolished the right of survivorship only in joint tenancies in fee, but does not affect joint estates for life or estates by entirety. Vass v. Freeman, 56 N.C. 221, 69 Am. Dec. 734; Powell v. Allen, 75 N.C. 450; Blair v. Osborne, 84 N.C. 417; Powell v. Morisey, 84 N.C. 421.

In Powell v. Allen, 75 N.C. 452, Pearson, C.J., says:

"When two or more acquire land by purchase, as distinguished from descent, and the four unities exist, to wit, 'time, title, estate and possession,' they take as joint tenants unless there be an express provision that they shall take as tenants in common, and not as joint tenants."

In construing the act of 1784, now C. S. § 1735, Chief Justice Pearson says, further:

"It

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