McDowell v. McDowell, 828SC262

• Decision Date: 19 April 1983
• Docket Number: No. 828SC262,828SC262
• Citation: 61 N.C.App. 700,301 S.E.2d 729
• Court: North Carolina Court of Appeals
• Parties: Richard L. McDOWELL and wife, Merle B. McDowell v. Kate B. McDOWELL and East Federal Savings & Loan Association.

Page 729

301 S.E.2d 729

61 N.C.App. 700

Richard L. McDOWELL and wife, Merle B. McDowell v. Kate B. McDOWELL and East Federal Savings & Loan Association.

No. 828SC262.

Court of Appeals of North Carolina.

April 19, 1983.

White, Allen, Hooten, Hodges & Hines by John R. Hooten, Kinston, for petitioners-appellants.

Barker, Kafer & Mills by Charles William Kafer, New Bern, for respondent-appellee McDowell.

JOHNSON, Judge.

The issue raised by this appeal is whether the court erred in granting the respondent's motion for summary judgment, thereby dismissing the petition for partition. On a motion for summary judgment, under N.C.G.S. 1A-1, Rule 56, the movant has the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980). For the reasons which follow, we find no genuine issue of material fact and affirm.

Under Chapter 46 of the North Carolina General Statutes, a tenant in common is entitled to partition as a matter of right. Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965). This right may be waived, however, for a reasonable time, by either an express or implied contract. Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966). In Hepler v. Burnham, 24 N.C.App. 362, 210 S.E.2d 509 (1975), this Court held that a cotenants' right to partition can be contracted away in a deed of separation entered into while the property is still owned by the parties as tenants by the entirety. In Hepler, the parties agreed in a deed of separation that prior to the emancipation of the parties' minor child, the husband would make the mortgage payments on the parties' house and the wife could reside there rent free. This Court held that by executing the deed of separation the parties had effectively modified and limited their right to partition the property. The provisions allowing the wife to live rent free on premises owned by the parties for the duration of the agreement at the least impliedly limited the petitioner's right to partition the property. More recently in Winborne v. Winborne, 54 N.C.App. 189, 282 S.E.2d 487 (1981), this Court relied on Hepler and held that a petition for partition should have been dismissed where the parties entered into a separation agreement containing the following provision: "The parties own a home as 'tenants by the entirety,' in which husband will continue to live and make payments." The agreement in Hepler was considered indistinguishable from that in Winborne because in each case "the gravamen of the separation agreement as to the disposition of the entirety property is that the respondent will be allowed to live in the house so long as he or she meets certain conditions." 54 N.C.App. at 190, 282 S.E.2d at 488.

The separation agreement in the case under discussion is indistinguishable in this respect from the agreements in Hepler and Winborne. It allows the respondent to either live in the house herself or to rent it, with petitioner paying the monthly mortgage indebtedness, subject to certain conditions, until such time as the parties mutually agree to sell the property. Under the rule of Hepler and Winborne, petitioner, by entering into this agreement, impliedly limited his right to partition the property without the consent of the respondent.

Petitioner further argues that the provision regarding sale upon mutual consent is void as being an unreasonable restraint on alienation and, therefore, against public policy. In Properties, Inc. v. Cox, supra, the Supreme Court addressed a similar attack upon a separation agreement and upheld the agreement not to partition during the lifetime of the wife. The Court noted that "[w]hile it is the general rule that a tenant in common may have partition as a matter of right, it is equally well established that a cotenant may, either by an express or implied contract, waive his right to partition for a reasonable time. 268 N.C. at 19, 149 S.E.2d at 557 (Emphasis added). From a separation agreement providing for the wife's exclusive use of the property during her lifetime, the court implied a waiver of the right to partition during her life. From this holding it is clear that an agreement providing for the wife's continued possession of property for her life is valid and not subject to attack as an unreasonable restraint on alienation. In this case, the longest possible amount of time during which this property could remain in the wife's possession without agreement to sell is for her life. Under the rule of Properties this does not constitute an unreasonable restraint on alienation, and the provision at issue is enforceable.

We note that courts in other jurisdictions have denied partition where an agreement not to sell common property without the consent of the other cotenants exists. Annot., 37 A.L.R.3d 1009 (1981). In Rosenberg v. Rosenberg, 413...