Honeycutt v. Citizens Nat. Bank in Gastonia

• Decision Date: 19 October 1955
• Docket Number: No. 164,164
• Court: North Carolina Supreme Court
• Parties: Bright E. HONEYCUTT v. CITIZENS NATIONAL BANK IN GASTIONIA, Executor and Trustee of the Estate of C. E. Honeycutt, and Foda Honeycutt Miller; Zora Honeycutt Worrell; Joe W. Honeycutt; May Honeycutt Flowe; Blake Honeycutt Keenan; Nellie M. Honeycutt; Carrie Brooks Honeycutt; Eula Honeycutt Coley; Bartley L. Honeycutt, and J. Samuel Honeycutt.

Page 598

89 S.E.2d 598

242 N.C. 734

Bright E. HONEYCUTT v. CITIZENS NATIONAL BANK IN GASTIONIA, Executor and Trustee of the Estate of C. E. Honeycutt, and Foda Honeycutt Miller Zora Honeycutt Worrell; Joe W. Honeycutt; May Honeycutt Flowe; Blake Honeycutt Keenan; Nellie M. Honeycutt; Carrie Brooks Honeycutt; Eula Honeycutt Coley; Bartley L Honeycutt, and J. Samuel Honeycutt.

No. 164

Supreme Court of North Carolina.

Oct. 19, 1955

Geo. B. Mason, L. B. Hollowell, Gastonia, for defendants, appellants.

Mullen, Holland & Cooke, Gastonia, for plaintiff, appellee.

BOBBITT, Justice.

The ultimate questions for decision are these: 1. Did the plaintiff own all or any part of the property in controversy as of the date of her husband's death? 2. If so, is she precluded from asserting her claims against defendants, based on such ownership, by her acceptance of benefits under her husband's will?

A deed to husband and wife, nothing else appearing, vests the title in them as tenants by entirety. Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45, and cases cited. The fact that the husband paid the entire purchase price, standing alone, does not affect the character of the estate vested in husband and wife. Where a husband purchases realty and causes the conveyance to be made to his wife, the law presumes that it is a gift and no resulting trust arises; and to rebut the presumption of gift and establish a resulting trust the evidence must be clear, strong and convincing. Shue v. Shue, 241 N.C. 65, 84 S.E.2d 302, and cases cited. This well established rule applies with equal force when the husband purchases realty and causes the conveyance to be made to himself and his wife, as tenants by entirety, rather than to the wife as sole owner. In Morton v. Blades Lumber Co., 154 N.C. 278, 70 S.E. 467, the husband paid the purchase price and caused the deed to be made to himself and his wife; and it was held that the title vested in them as tenants by entirety. In Akin v. First Nat. Bank, 227 N.C. 453, 42 S.E.2d 518, the husband paid the purchase price and caused the deed to be made to the trustee of a passive trust for the benefit of himself and his wife; and it was held that, by virtue of our Statute of Uses, G.S. § 41-7, the title vested in them as tenants by entirety.

Here there is no evidence to rebut the presumption of gift. Indeed, the Finding of Fact (#3) is that on and prior to 29 January, 1950, 'C. E. Honeycutt and his wife, Bright E. Honeycutt, were the owners, as tenants by the entirety,' of the lands here involved.

In passing, we note that a different rule applies when the wife pays the purchase price in money, as in Deese v. Deese, 176 N.C. 527, 97 S.E. 475, or in land, incident to an exchange of partition deeds, as in Wood v. Wilder, 222 N.C. 622, 24 S.E.2d 474. But we are not concerned here with the common law and statutory bases for these decisions.

True, C. E. Honeycutt and wife, Bright E. Honeycutt, purported to convey the lands here involved to Rosebro; and Rosebro and wife purported to convey the identical lands to C. E. Honeycutt. The explicit Finding of Fact (#3) is that this transaction was 'solely for the purpose of accomplishing an indirect conveyance of the plaintiff's property to her husband.' Further, the explicit Finding of Fact (#4) is that there was not attached to such purported deed from the Honeycutts to Rosebro 'a certificate of a proper probate officer reciting that at the time of its execution the same is not unreasonable or injurious to the rights of the said Bright E. Honeycutt as required by General Statutes of North Carolina, 52-12.' The certificate is solely to the effect that the Honeycutts appeared before the Notary Public and acknowledged their execution of the purported deed.

In the absence of a certificate by the examining officer incorporating a statement of his findings that the conveyance was not unreasonable or injurious to the wife, such purported conveyance was void. Such a judicial or quasi-judicial determination and certificate is indipensable to the validity of a conveyance by a wife to her husband. G.S. § 52-12; Best v. Utley, 189 N.C. 356, 127 S.E. 337. Since the purported deed to Rosebro was void, it follows that the purported deed from the Rosebros to C. E. Honeycutt is wholly ineffectual as a conveyance of title.

As stated by Barnhill, J., now Chief Justice: 'A married woman cannot convey her real property to her husband directly or by any form of indirection without complying with the provisions of G.S. § 52-12. Any manner of conveyance--testamentary devises excepted--otherwise than as therein provided is void.' Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624, 627, and cases cited.

The contention that G.S. § 52-12 was repealed by Ch. 73, § 21, 1945 Session Laws, now codified as G.S. § 47-116, is without merit. In fact, Section 19 of said 1945 Act re-enacts G.S. § 52-12, leaving intact and unimpaired the provisions presently applicable. Subsequently, G.S. § 52-12 was amended in respects not material here by Ch. 111, 1947 Session Laws, and again by Ch. 1006, 1951 Session Laws. Suffice it to say, G.S. § 52-12 and G.S. § 47-116 relate to different subjects. There is no conflict.

As to lands owned by C. E. Honeycutt and wife, Bright E. Honeycutt, as tenants by entirety, when the husband died, the wife, as surviving tenant, became the sole owner. No right, title or interest of any kind passed to the executor for the benefit of the creditors or devisees of the husband. Underwood v. Ward, 239 N.C. 513, 80 S.E.2d 267; Davis v. Bass, 188 N.C. 200, 124 S.E. 566. The proceeds of sales made by the executor, subsequent to the death of C. E. Honeycutt, as set forth in the Findings of Fact (#13 and #17) are deemed to have the same status as such lands.

As to lands owned by C. E. Honeycutt and wife, Bright E. Honeycutt, previously sold and conveyed by them, nothing else appearing, the husband and the wife had equal right, as tenants in common, to the proceeds derived from such sales. Wilson v. Ervin, 227 N.C. 396, 42 S.E.2d 468.

The cash paid as purchase price ($32,230.00) was collected by C. E. Honeycutt, deposited in his personal bank account, and upon his death passed into the hands of the executor. If it be conceded that, upon dissolution of the estate by entirety by their joint conveyance, the wife, by gift or by contract, might have relinquished her right to one-half the purchase price so collected, see Deese v. Deese, 176 N.C. 527, 97 S.E. 475, the explicit Finding of Fact (#10) is 'that no agreement or contract was made at any time between the said C. E. Honeycutt and his wife, Bright E. Honeycutt, prior to his death with reference to the distribution, division or disposal of said funds which totaled $32,230.00, and no portion of said sum was paid over to the said Bright E. Honeycutt by either C. E. Honeycutt during his lifetime or the said bank as his Executor after his death.' Furthermore, the explicit Finding of Fact (#14) negatives any suggestion that the purchase by C.E. Honeycutt on 21 September 1948, of the Fairmont Park Property, which property was conveyed to C. E. Honeycutt and wife, Bright E. Honeycutt, as tenants by entirety, affects the determination of this controversy. (It is noted that Finding of Fact #10 purports to bring forward paragraph 7 of the Stipulations, but through obvious inadvertence fails to include the $10,000 cash payment by the Gastonia Brush Company.)

The balance purchase price notes, for $25,00 and $1,037.50,...