Murphy v. Davis

• Decision Date: 05 April 1983
• Docket Number: No. 827SC282,827SC282
• Citation: 61 N.C.App. 597,300 S.E.2d 871
• Court: North Carolina Court of Appeals
• Parties: Peggy Davis MURPHY and husband, Robert Murphy, Petitioners, v. Helen Mills DAVIS, Defendant, and T.E. Davenport, Trustee and First Union National Bank, Additional Defendants.

Page 871

300 S.E.2d 871

61 N.C.App. 597

Peggy Davis MURPHY and husband, Robert Murphy, Petitioners, v. Helen Mills DAVIS, Defendant and T.E. Davenport, Trustee and First Union National Bank Additional Defendants.

No. 827SC282.

Court of Appeals of North Carolina.

April 5, 1983.

J. Michael Weeks, Zebulon, for petitioners-appellants.

Moore, Diedrick, Whitaker & Carlisle by Joy Sykes, Rocky Mount, for defendant-appellee.

VAUGHN, Chief Judge.

Petitioners' first argument is that the trial court erred in granting defendant's motion for summary judgment. Summary judgment shall be rendered if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). Petitioners contend that, although no facts are in dispute, defendant was not entitled to judgment as a matter of law because the conveyance between Iredell and Helen Davis, which failed to comply with G.S. 52-6, was not void.

G.S. 52-6 (repealed by session laws 1977, c. 375, s. 1, effective January 1, 1978), provided, in part:

(a) No contract between husband and wife made during their coverture shall be valid to affect or change any part of the real estate of the wife ... unless such contract ... is in writing, and is acknowledged before a certifying officer who shall make a private examination of the wife according to the requirements formerly prevailing for conveyance of land.

The deed executed between defendant and her deceased husband was executed on 26 September 1974. The petition for partition was filed 1 May 1980. The following statute was enacted, effective 1 October 1981.

Any contract between husband and wife coming within the provisions of G.S. 52-6 executed between January 1, 1930, and January 1, 1978, which does not comply with the requirement of a private examination of the wife or with the requirements that there be findings that such a contract between a husband and wife is not unreasonable or injurious to the wife and which is in all other respects regular is hereby validated and confirmed to the same extent as if the examination of the wife had been separate and apart from the husband. This section shall not affect pending litigation. (Emphasis added).

G.S. 52-8.

Since this litigation was pending during the effective date of the statute, G.S. 52-8 does not affect this action. A wife's deed purporting to convey property to her husband, without complying with G.S. 52-6, and not validated by G.S. 52-8, is void. Boone v. Brown, 11 N.C.App. 355, 181 S.E.2d 157 (1971). This rule, although questioned, has been recently applied by this Court in reference to a separation agreement in DeJaager v. DeJaager, 47 N.C.App. 452, 267 S.E.2d 399 (1980).

Petitioners contend that the legislative intent is to validate a deed conveyed under these circumstances, and this Court should find, as a matter of law, that the conveyance was valid and petitioners own the property as tenants in common with defendant. We find, however, that the legislative intent is clear from the unambiguous language of the statute. "This section shall not affect pending litigation" is not subject to more than one reasonable interpretation. In enacting G.S. 52-8, the legislative intent was to validate contracts made void by G.S. 52-6, except for those in pending litigation. Since this action was pending at the time of enactment of G.S. 52-8, failure to meet...