Dunn v. Pate

• Decision Date: 02 July 1993
• Docket Number: No. 170PA92,170PA92
• Citation: 334 N.C. 115,431 S.E.2d 178
• Court: North Carolina Supreme Court
• Parties: Mollie Jackson DUNN and husband, Cecil Dunn; Daisy Jackson Trogdon and husband, James H. Trogdon, Jr.; Patricia Jackson Davis and husband, William R. Davis; Fairlyn Jackson Montella and husband, Michael Montella v. Willard J. PATE, Bobbie Lou Jackson Grimes; Fairley James Grimes and wife, Jennifer B. Grimes; David E. Grimes, Jr.; Elizabeth Grimes Fisher and husband, Wilson David Fisher; Labon Charles Grimes and wife, Libby Grimes.

Page 178

431 S.E.2d 178

334 N.C. 115

Mollie Jackson DUNN and husband, Cecil Dunn; Daisy Jackson

Trogdon and husband, James H. Trogdon, Jr.; Patricia

Jackson Davis and husband, William R. Davis; Fairlyn

Jackson Montella and husband, Michael Montella v. Willard J. PATE, Bobbie Lou Jackson Grimes; Fairley James

Grimes and wife, Jennifer B. Grimes; David E. Grimes, Jr.;

Elizabeth Grimes Fisher and husband, Wilson David Fisher;

Labon Charles Grimes and wife, Libby Grimes.

No. 170PA92.

Supreme Court of North Carolina.

July 2, 1993.

On appeal and discretionary review of the decision of the Court of Appeals, 106 N.C.App. 56, 415 S.E.2d 102 (1992), reversing an order granting summary judgment in favor of defendants entered by Herring, J., in the Superior Court, Cumberland County, on 31 December 1990. Heard in the Supreme Court 15 January 1993.

McCoy, Weaver, Wiggins, Cleveland and Raper, by Richard M. Wiggins, Fayetteville, for plaintiff-appellees.

Garris Neil Yarborough, Fayetteville, for defendant-appellees.

FRYE, Justice.

This case presents the question of whether noncompliance with the private examination requirements set forth in N.C.G.S. § 52-12 (Supp.1957) (superseded by N.C.G.S. § 52-6) (repealed 1977) and N.C.G.S. § 47-39 (Supp.1957) (repealed 1977) in the execution of a deed in 1962 may be an effective basis for relief in an action to set aside that deed today. In light of the principle of equal protection under the law which makes gender-based discrimination presumptively unconstitutional, we hold that noncompliance with the statutes in question will not lead to the requested relief.

Plaintiffs instituted this action on 12 February 1989, seeking to have a 1962 deed to real property in Cumberland County set aside for failure to comply with the private examination requirements then in effect. The property in question was previously owned by Mary A. Jackson. On 22 October 1951, she conveyed title to the land to her son Fairley J. Jackson and his wife, Mary Elizabeth Jackson, as tenants by the entirety. In 1962 Fairley J. and Mary Elizabeth Jackson conveyed the property to Fairley J. Jackson individually. At that time the former N.C.G.S. § 52-12 ¹ [hereinafter referred to as N.C.G.S. § 52-6] and N.C.G.S. § 47-39 ² required that the deed contain a certification by the clerk of court that the conveyance was neither unreasonable nor injurious to the wife. The deed executed by the couple, otherwise regular in form, did not contain the required certification.

In 1976 Fairley J. Jackson died testate, devising the property in question to his wife (Mary Elizabeth) for life, with the remainder in equal shares to each of his living children and to his sister-in-law, Willard J. Pate. By codicil the share to his sister-in-law was devised to her for life, with the remainder in the children of Bobbie Lou Jackson Grimes (Fairley's grandchildren). Mary Elizabeth Jackson died intestate in 1980, leaving five living children from her marriage to Fairley J. Jackson as heirs. Four of Fairley and Mary Elizabeth's five children and their spouses are the plaintiffs in this action. Willard J. Pate, Bobbie Lou Jackson Grimes (Fairley and Mary Elizabeth's other child) and Bobbie Lou Jackson Grimes' children and spouses are the defendants in this action.

In the present action, plaintiffs challenge the 1962 deed as ineffective to convey the property to Fairley J. Jackson individually due to noncompliance with the private examination statutes and allege that title to the property continued in both Fairley J. and Mary Elizabeth Jackson as tenants by the entirety. They contend that upon Fairley's death the property passed to Mary Elizabeth Jackson individually by operation of law. In such case, the property descended upon Mary Elizabeth's death by virtue of her intestacy to the five children in five equal shares rather than passing in six shares as directed by Fairley's Will and Codicil. Defendants originally argued that failure to comply with the private examination statutes in effect in 1962 could not be a basis upon which the deed could be set aside since the legislature enacted curative statutes after the repeal of the examination statutes and since the examination statutes are unconstitutional. Both parties filed motions for summary judgment. The trial court granted defendants' motion. Plaintiffs appealed to the Court of Appeals which reversed on state substantive law grounds and remanded to the superior court. Dunn v. Pate, 98 N.C.App. 351, 390 S.E.2d 712 (1990).

On remand, defendants argued that the remaining issue for resolution was the constitutionality of N.C.G.S. § 52-6 and N.C.G.S. § 47-39 which had been raised and preserved throughout the litigation. Both parties again filed motions for summary judgment and again defendants' motion was granted. Plaintiffs appealed to the Court of Appeals which reversed the trial court on the basis of stare decisis, noting that this Court held a former version of the statutes in question to be constitutional in Butler v. Butler, 169 N.C. 584, 86 S.E. 507 (1915), and had not as yet indicated a change in position. Dunn v. Pate, 106 N.C.App. 56, 59, 415 S.E.2d 102, 104 (1992). Defendants filed notice of appeal and a petition for discretionary review of the constitutional issue. Appeal was retained and the petition for discretionary review was allowed by this Court on 9 July 1992.

We observe initially that the Court of Appeals correctly stated the law of stare decisis in its decision below. As the Court of Appeals noted, it has "no authority to overrule decisions of [the] Supreme Court and [has] the responsibility to follow those decisions 'until otherwise ordered by the Supreme Court.' " Dunn v. Pate, 106 N.C.App. at 60, 415 S.E.2d at 104 (quoting Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985)). However, we conclude that Butler, 169 N.C. 584, 86 S.E. 507, the decision relied upon by the Court of Appeals, does not control the question in this case. See Spencer v. Spencer, 37 N.C.App. 481, 487-88, 246 S.E.2d 805, 809 (Chief Judge Morris observed that drastic changes have occurred in society since 1915 when a woman could not vote, was denied educational opportunities, was excluded from most legal and commercial matters and was generally occupied in the home), disc. rev. denied, 296 N.C. 106, 249 S.E.2d 804 (1978), cert. denied, 441 U.S. 958, 99 S.Ct. 2400, 60 L.Ed.2d 1062 (1979).

The statutes in question, N.C.G.S. § 52-6 and N.C.G.S. § 47-39, were both repealed in 1977. After their repeal N.C.G.S. § 52-8 was amended by the legislature to provide a cure for deeds failing to comply with the private examination requirements. On earlier appeal in this case, the Court of Appeals held, however, that the deed in question was not cured by N.C.G.S. § 52-8 since the plaintiffs' rights in the property vested in August of 1980 and the relevant amendment to N.C.G.S. § 52-8 was not effective until 1981. Dunn v. Pate, 98 N.C.App. at 355, 390 S.E.2d at 715 (citing West v. Hays, 82 N.C.App. 574, 346 S.E.2d 690 (1986)). Thus, the question before us is whether plaintiffs may assert noncompliance with the examination statutes as a basis for setting aside the 1962 deed. Finding the statutes unconstitutional, we hold that they may not.

Before addressing the constitutionality of the statutes in question, we must address plaintiffs' argument that defendants have not shown an injury in fact and therefore do not have standing to challenge the constitutionality of the private examination statutes. Plaintiffs rely on Murphy v. Davis, 61 N.C.App. 597, 599, 300 S.E.2d 871, 873, cert. denied & appeal dismissed, 309 N.C. 192, 305 S.E.2d 735 (1983), and In re Appeal of Martin, 286 N.C. 66, 209 S.E.2d 766 (1974), to support this contention. We are not persuaded by plaintiffs' argument.

A general rule of standing is that only persons "who have been injuriously affected ... in their persons, property or constitutional rights" may challenge the validity of a statute. Canteen Service v. Johnson, Comr. of Revenue, 256 N.C. 155, 166, 123 S.E.2d 582, 589 (1962); see also Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Defendants in this case have alleged that they will be injured in fact by operation of N.C.G.S. § 52-6 if it is enforced because its effect will be to invalidate the 1962 deed and directly deprive them of their bequests under the Will and Codicil of Fairley J. Jackson. We believe that deprivation of property resulting from enforcement of the statute gives these defendants standing to challenge the constitutionality of the statute.

In Murphy, on facts very similar to the facts in the present case, the Court of Appeals held that the petitioner had no standing to challenge the constitutionality of the examination statutes. Murphy, 61 N.C.App. at 600, 300 S.E.2d at 873. The court correctly stated that the petitioner "must allege she has sustained an 'injury in fact' as a direct result of the statute to have standing." Id. However, the court concluded that the petitioner failed to do so because her injury resulted from "her father's failure to comply with the statute, not because the statute was discriminatory as to her." Id. To the extent that this conclusion implies that petitioner, the transferee of her father's interest, suffered no direct injury by operation of the statute, Murphy is hereby overruled.

However, the Court of Appeals may have reached the conclusion that petitioner in Murphy had no standing because one must "belong[ ] to the class which is prejudiced by the statute." Martin, 286 N.C. at 75, 209 S.E.2d at 773. Plaintiffs in this case argue that this rule also prevents defendants from challenging the constitutionality of the statute. However, we believe the recognized exception that "allows an affected party to allege discrimination when no member of a class subject to the alleged discrimination is in a position to raise the constitutional question," id., applies in ...