Harrison v. Ray

• Decision Date: 10 March 1891
• Citation: 12 S.E. 993,108 N.C. 215
• Court: North Carolina Supreme Court
• Parties: Harrison et al. v. Ray et al.

12 S.E. 993

108 N.C. 215

Harrison et al.

v.Ray et al.

Supreme Court of North Carolina.

March 10, 1891.

Coparceners—Partition—Deed to Husband and Wipe.

1. A deed, on partitionj which by direction of a coparcener is made to himself and wife, does not convey to them an estate by the entirety.

2. In such case the fact that the husband received the deed and had it recorded does not estop his heirs in a suit for their share.

Civil action tried before MacRae, J., at February term, 1890, of Wake superior court. Oakley Harrison and his brothers and sisters divided the lands (which had been conveyed to them by their father) by deeds of partition among themselves, without legal proceedings. The deed for Oakley Harrison's share was made to him and Juda, his wife, who since his death has intermarried with the defendant Ray. The plaintiffs, who are Oakley Harrison's children by his first wife, alleged that the name of said Juda was inserted in the deed by mistake and inadvertence of the draughtsman. The defendants allege that the deed was drawn to Oakley Harrison and said Juda by the direction of Oakley Harrison, who accepted the deed and caused It to be registered. Thecourtsubmitted as the first issue whether the name of Juda, the wife of Oakley Harrison, was inserted in the deed by mistake. This issue was found against the plaintiffs, who then moved for judgment non obstante veredicto, and excepted to the refusal of the motion. They also excepted because the court instructed the jury that, if they found for the defendants upon the first issue, they should not find as to the second issue that the plaintiffs were the owners and entitled to the possession of the land. Plaintiffs appealed from judgment rendered-

J. H. Fleming, for appellants.

Fuller & Snow, for appellees.

Clark, J., (after stating the facts as above.) When realty is devised or conveyed to husband and wife, they take by entirety, and upon the death of one the whole belongs to the other, by right of survivorship. 2 Bl. Comm. 182; Long v. Barnes, 87 N. C. 329; Simonton v. Cornelius, 98 N. C. 433. 4 S. E. Rep. 38. The act abolishing survivorship in joint tenancies (Act 1784, c. 204; Code, § 1326) does not apply to such cases. Motley v. Whitemore, 2 Dev. & B. 537; Todd v. Zachary, Busb. Eq. 286; Woodford v. Higly, 60 N. C. 234. Indeed, it is held that a conveyance to husband and wife has a fifth unity added to the four common-law unities recognized in joint tenancy, 1. e., unity of person. Topping v. Sadler, 5 Jones, (N. C.) 357; Freem. Co-Tenancy, § 64. But in the present case the deed to Oakley Harrison and wife operated merely as a partition of the lands, and conveyed no estate to them. The land in controversy was the share oi Oakley Harrison in the lands inherited byhim and his brothers and sisters. This tract was ascertained tobehis share bythe consent partition, which was had in lieu of legal proceedings to appoint commissioners to mark it off and assign it. It is not claimed that Jnda, the wife, had any interest in the land, so that anything should have been assigned her, but it is contended that by Oakley Harrison's direction the deed was drawn to him and his wife jointly. Suppose this to be so. The grantors were not conveying any additional estate or interest to Oakley Harrison. He had bought nothing, and tbey were not making him a present of anything. The deed only assigned to him in severalty, and by metes and bounds, what was already his. The grantors conveyed no part of their shares. They had no interest in the share embraced in the deed to Oakley Harrison, and could con vey no interest therein to him or any one else. It was his by the conveyance from his father. He received no titlenorestateby virtueof the deed from his brothers and sisters, nor could his wife. The title being already in him, the deed merely designated his share by metes and bounds, and allotted it to be held in...