Fisher v. Fisher
| Decision Date | 02 February 1940 |
| Docket Number | 665. |
| Parties | FISHER et al. v. FISHER et al. |
| Court | North Carolina Supreme Court |
Civil action instituted under C.S. § 1743, 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, Cleo M Fisher, who were divorced absolutely on June 15, 1933.
2 W. Homer Fisher, who on June 22, 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 July 14, 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.
4. On December 16, 1931, W. Homer Fisher and his wife, Cleo M. Fisher, executed a deed of separation, which was acknowledged December 23, 1931, before the clerk of the superior court in the manner provided by C.S. § 2515. It is recited therein that: "Whereas the said parties have agreed among themselves as to the custody of the children and a settlement of all property rights and difference existing between them", but the lands in question are not mentioned specifically or by inference. The only references therein to any land are briefly stated as follows: Said party of the second part (the wife) is to hold all real estate and personal property which she may now own, or hereafter acquire, free from all rights of the husband, from curtesy or any rights arising from the marital relation; and the husband is to have and to hold any real or personal property which he may now own, or hereafter acquire, other than that hereby specifically mentioned, free from any claim on the part of his wife; and each agrees that he or she will at all times execute and do all such assurances and things as the other of them, his or her heirs, executors, administrators or assigns, shall reasonably require for the purpose of giving full effect to these presents, and the covenants, claims and provisions herein contained. This agreement was filed for registration on August 12, 1932, and registered.
5. On December 21, 1931, W. Homer Fisher and wife, Cleo 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 the sole use and benefit of W. Homer Fisher, his heirs, executors or administrators, granting to the trustee "absolute discretion and power to sell, mortgage, exchange, convey or dispose of the said property, and re-invest the proceeds of the said sale in such other property as the said trustee may deem advisable, and shall pay the income from the said property, or from the property which may be exchanged for the said property, to the said W. Homer Fisher, or to whomsoever he designates". The instrument contained covenants of seizin, right to convey, freedom from incumbrances and general warranty, and was acknowledged before the clerk of superior court on December 24, 1931, but the certificate of the clerk fails to comply with Section 2515 of Consolidated Statutes of 1919. It was filed for registration November 28, 1932, and registered. W. Homer Fisher did not thereafter execute a deed to said trustee conveying any interest in the land in question.
6. Sydnor DeButts, trustee, has at no time taken possession of said lands, or attempted in any manner to execute the duties imposed upon him under said instrument; but, to the contrary, up to the time of his death, W. Homer Fisher continued to occupy, possess and enjoy the same in the same manner as he had previously done, and as if the said instrument had not been executed.
7. On June 19, 1933, Cleo M. Fisher was lawfully married to Luther D. Hatchell; and on June 30, 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, Cleo 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 acknowledgement 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 August 13, 1936.
8. On May 19, 1938, Sydnor DeButts, trustee, executed a deed to W. Homer Fisher and wife, Lois Ruth Fisher, in which, after referring to the separation agreement, to the deed of trust from W. Homer Fisher and wife, Cleo M. Fisher to Sydnor DeButts, trustee, to the divorce of W. Homer Fisher and Cleo M. Fisher, and to the deed from Cleo 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 Ruth 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 June 1, 1938, and registered.
9. Lois Ruth 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 Ruth 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 Ruth 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.
11. It is not necessary that the lands be sold to create assets to pay debts of the estate.
Upon such allegations plaintiffs pray judgment inter alia:
(1) Removing the claim of Lois Ruth Fisher as a cloud upon the title of all the heirs of W. Homer Fisher, deceased; and (2) that the deeds from Sydnor DeButts to W. Homer Fisher, and his wife, Lois Ruth Fisher, be declared ineffective to create an estate by the entirety; and (3) for the appointment of a resident trustee in the place of ...
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