Fisher v. Fisher

• Decision Date: 19 June 1940
• Docket Number: 688.
• Citation: 9 S.E.2d 493,218 N.C. 42
• Parties: FISHER et al. v. FISHER et al.
• Court: North Carolina Supreme Court

9 S.E.2d 493

218 N.C. 42

FISHER et al. v. FISHER et al.

No. 688.

Supreme Court of North Carolina

June 19, 1940

Civil action instituted under C.S. § 1743 to quiet title and to remove cloud from 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.

The facts alleged in the complaint set forth in the main in the opinion on former appeal pertaining to demurrer to complaint and reported in 217 N.C. 70, 6 S. E.2d 812, are here referred to in order that unnecessary repetition may be avoided. These facts are noted: W. Homer Fisher and his first wife, Cleo M Fisher, owned the lands in controversy as tenants by the entirety. On December 16, 1931, they entered into a separation agreement which was executed in accordance with C.S. § 2515. Five days later, December 21, 1931, he and she as husband and wife, joined in the execution of a deed to Sydnor DeButts, trustee, conveying the lands in question for the use and benefit of W. Homer Fisher. As to this deed, the provisions of C.S. § 2515 were not followed. Later, W. Homer Fisher and Cleo M. Fisher were divorced absolutely. Afterward he married defendant Lois Ruth Fisher. And Cleo M. Fisher married Luther D. Hatchell, and on June 30, 1936, they executed a quit-claim deed to Sydnor DeButts, trustee, to all right, title and interest they had in the lands in question for the uses and purposes set forth in the former deed from W. Homer Fisher and wife, Cleo M. Fisher, to Sydnor DeButts trustee. Thereafter, on May 19, 1938, Sydnor DeButts trustee, made a deed to W. Homer Fisher and wife, Lois Ruth Fisher, purporting to convey the lands in question. The terms of the several deeds are set forth in the complaint.

W. Homer Fisher died on July 14, 1938, leaving defendant, Lois Ruth Fisher, as his widow, and plaintiffs, Gladys Fisher, Mrs. Edna F. Cannady, Anna Fisher, and Ellen Fisher, and the defendant, William H. Fisher, Jr., as his only heirs at law.

Upon decision of this court being certified to Superior Court, Lois Ruth Fisher filed answer in which she admitted all the allegations of fact in the complaint and for further defense makes in addition to the facts admitted these pertinent averments: (1) That the deed of May 19, 1938, from Sydnor DeButts, trustee, to W. Homer Fisher and Lois Ruth Fisher, who were then husband and wife, conveyed the lands in question to them in fee simple as tenants by the entirety. (2) That W. Homer Fisher and Cleo M. Fisher agreed with each other as to the settlement of all property rights, including the lands in question as they recited in the deed of separation, but placed the agreement concerning the lands in a separate instrument, to wit: the deed of trust of December 21, 1931, from them to Sydnor DeButts, trustee; that the conveyance by this deed of trust was part of the separation agreement and same was considered and passed upon by the clerk; and that in passing upon the separation agreement he found as a fact that the conveyance of said lands to Sydnor DeButts, trustee, was not unreasonable and injurious to said Cleo M. Fisher. (3) That W. Homer Fisher was estopped, and plaintiffs, Gladys Fisher, Mrs. Edna F. Cannady, Ellen Fisher and Anna Fisher, and the defendant, William H. Fisher, Jr., as heirs at law and privies of W. Homer Fisher are estopped by the deed of trust from W. Homer Fisher and wife, Cleo M. Fisher, to Sydnor DeButts, trustee, to claim the lands in question, and same is pleaded as an estoppel in bar of this action. (4) That by reason of the matters and things averred, defendant is owner and is entitled to possession of said lands, and that plaintiffs and William H. Fisher, Jr., as heirs at law of W. Homer Fisher, have no right or title thereto.

Plaintiff in reply filed denies such material averments of the answer as are not alleged in the complaint. Guardian ad litem for William H. Fisher, Jr., minor, by answer filed, admits all of the allegations of complaint.

On the trial below the parties waived jury trial and agreed that the judge presiding might find the facts and render judgment thereon. Whereupon, the judge found as facts in substantial conformity the facts alleged in the complaint and stated in substance in opinion on former appeal, with these additions thereto: (1) That the deed of trust from W. Homer Fisher and wife, Cleo M. Fisher, to Sydnor DeButts, trustee, conveyed the entire landed estate of the wife and same "was executed for the purpose of enabling the husband aforesaid to deal with the property as his own, freed from his said wife's interest therein. That, at all times before and after the execution of said trust deed, W. Homer Fisher, the said husband, was and remained in possession of the lands entrusted as aforesaid and collected all rents and profits therefrom and used the same for himself up to and until the time of his death as hereinafter alleged; and at no time did the trustee take possession of the lands entrusted as aforesaid, or take charge thereof, or collect rents and profits therefrom and pay over same to W. Homer Fisher"; (2) That the deed of separation and the deed of trust to Sydnor DeButts, trustee, together form the separation agreement between W. Homer Fisher and his wife, Cleo M. Fisher; (3) That after W. Homer Fisher and Lois Ruth Fisher were married they lived together in the same home formerly occupied by W. Homer Fisher and wife, Cleo M. Fisher, and family; (4) That after the execution of the original deed of trust of December 21, 1931, W. Homer Fisher did not execute or deliver a deed of any kind conveying to Sydnor DeButts as trustee or otherwise any interest, title or estate in and to the lands in question, or any part of them, before or after his divorce from Cleo M. Fisher, and whatever title, interest or estate Sydnor DeButts acquired as trustee or otherwise in said lands is fully and completely expressed in the deed of trust of December 21, 1931, and the so-called quitclaim deed of June 30, 1936; (5) That in the deed of trust of May 19, 1938, from Sydnor DeButts, trustee, to W. Homer Fisher and wife, Lois Ruth Fisher, no other consideration passed or moved between the grantor and grantees for the conveyance of the said lands, except that expressed in the deed of trust; and that among the recitals therein is this: "And, whereas, as part of agreement said W. Homer Fisher and wife conveyed to Sydnor DeButts by deed dated 21 December, 1931, *** the lands hereinafter described for the sole and separate use and benefit of said W. Homer Fisher with power to sell and convey the same".

Upon these findings of fact the court entered judgment declaring (1) That the plaintiffs Gladys Fisher, Mrs. Edna F. Cannady, Anna Fisher and Ellen Fisher, and the defendant, William H. Fisher, Jr., are the owners of an estate in fee simple in the lands in question and are entitled to the immediate possession thereof; (2) That Lois Ruth Fisher is entitled to such dower right in said lands as may hereafter be allotted to her, and that her claim to a fee-simple estate in said lands is a cloud upon the title of the plaintiffs aforesaid and the defendant William H. Fisher, Jr.; (3) That the cloud arising from the claim of Lois Ruth Fisher be and it is removed, and (4) That the plaintiffs recover the costs to be taxed.

Defendant Lois Ruth Fisher appeals from said judgment to the Supreme Court, and assigns error.

Moseley & Holt and Hoyle & Hoyle, all of Greensboro, for appellant.

Harry R. Stanley, of Greensboro, for appellees.

WINBORNE Justice.

This court held on the former appeal, 217 N.C. 70, 6 S.E.2d 812 that the court below correctly ruled that deed from W. Homer Fisher and wife, Cleo M. Fisher, to Sydnor DeButts, trustee, is void, and conveyed nothing, that the tenancy by the entirety continued to exist between W. Homer Fisher and Cleo M. Fisher, his wife, and that, upon absolute divorce being granted, they became tenants in common, each owning an undivided one-half interest therein in fee simple. To that extent the decision on the former appeal, upon the facts then appearing, constitutes the law of the case, both in the subsequent proceedings in ...