Byrd v. Patterson

Decision Date04 June 1948
Docket Number738
Citation48 S.E.2d 45,229 N.C. 156
PartiesBYRD et ux. v. PATTERSON et al.
CourtNorth Carolina Supreme Court

Special proceedings for the sale of real property for partition in which the defendant Cora Allen Patterson pleads sole seizin.

Upon plea of sole seizin, the cause was transferred to the civil issue docket of the Superior Court for trial of the issue thus raised. When the cause came on to be heard, the parties waived trial by jury and submitted the cause to the judge to find the facts and render judgment upon the facts found. Thereupon, the court found the facts in substance as follows:

In 1901 Thomas Crumpton and wife conveyed the locus to 'Thomas N. Allen and wife.' The determinative provisions of the deed read: The premises, 'to Thomas N Allen & wife'; the granting clause, 'to said Thomas Allen and wife theirs and assigns'; the habendum clause, 'to the said Thomas N. Allen and wife, his heirs and assigns, to their only use and behoof forever'; and the warranty clause, 'covenant with said Thomas N. Allen his heirs and assigns.'

The name of the grantee 'wife' nowhere appears in the deed, but it is stipulated as a fact that at the time said deed was executed and delivered, Catherine Allen was the wife of Thomas N. Allen, living with him as such.

The land was paid for through the joint efforts of Allen and his wife.

T N. Allen died testate in the year 1931, leaving surviving his widow and one child by a former marriage, the defendant, Cora Allen Patterson. He devised the locus to his wife, Catherine Allen, for her natural life, but made no testamentary disposition of any remainder therein. He also bequeathed to his wife all his household and kitchen furniture, stock poultry, crops, and provisions on hand. His widow qualified as executrix of the will and continued in possession of the real property until her death in 1945. She left no child or children surviving. Her nephew, plaintiff William C. Byrd purchased from her heirs at law a two-thirds interest in said land, and one sister of deceased conveyed a one-third interest therein to defendant Cora Allen Patterson.

Upon finding the facts in substance as stated, the court concluded that the deed from Crumpton and wife to Allen and wife conveyed an estate by entirety and that those claiming under her are not estopped to claim title to the property in controversy by virtue of any election made by her when she qualified as executrix under the will of her husband and took the personal property therein devised to her. It thereupon adjudged that the plaintiff is the owner of a two-thirds undivided interest and the feme defendant of a one-third undivided interest in and to the locus, and ordered a sale thereof for partition. Defendants excepted and appealed.

W. Henry Hunter and Thomas Turner, both of Greensboro, for plaintiffs-appellees.

Thos. C. Carter, of Burlington, for defendants-appellants.


The record presents this situation: Land is conveyed to T. N. Allen and wife without naming the feme grantee. Allen dies testate, leaving surviving his widow and one child by a former marriage. In his will he devises his personal property and a life estate in the land to his widow. The widow qualifies as executrix, takes the personal property, and remains in possession of the land until her death. After her death, a collateral relative acquired a two-thirds interest in such estate as she owned in the land, and the feme defendant acquired the other one-third. The feme defendant, sole surviving heir of T. N. Allen, now claims the whole estate.

This state of facts raises two questions for decision: (1) Did the deed from Crumpton and wife to Allen and wife convey an estate by entirety; and if so, (2) did Mrs. Allen, by qualifying as executrix of Allen's will and accepting the personal property therein bequeathed to her, make an election which estopped her and those claiming under her from asserting title to the locus?

The court below answered the first in the affirmative and the second in the negative. We concur.

A deed, to be operative as a conveyance, must in some manner designate as grantee an existing person who is capable of taking title to the land. 16 A.J. 482. While the correct name of the grantee affords a ready means of identification of the person intended, its use is not a prerequisite to the validity of the instrument. 16 A.J. 483. If a living or legal person is intended as the grantee and is identifiable by the description used, the deed is valid, however he may be named in the deed. 16 A.J. 483.

Thus a conveyance, Ballard v. Farley, 143 Tenn. 161, 226 S.W. 544, or a dewise, Motley v. Whitemore, 19 N.C. 537, to a named man 'and wife' or a deed to a designated person 'and children' conveys an estate to the 'wife' or 'children' living at the time of the execution and delivery of the deed, or, in the case of a will, at the death of the testator. Darden v. Timberlake, 139 N.C. 181, 51 S.E. 895; Buckner v. Maynard, 198 N.C. 802, 153 S.E. 458; Cullens v. Cullens, 161 N.C. 344, 77 S.E. 228, L.R.A.1917B, 74; King v. Stokes, 125 N.C. 514, 34 S.E. 641; Helms v. Austin, 116 N.C. 751, 21 S.E. 556; Gay v. Baker, 58 N.C. 344, 68 Am.Dec. 229. It is just as effectual as if the name of the wife or child or children had been given...

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