Sutton v. Sutton

• Court: North Carolina Supreme Court
• Writing for the Court: DENNY
• Citation: Sutton v. Sutton, 236 N.C. 495, 73 S.E.2d 157 (N.C. 1952)
• Decision Date: 19 November 1952
• Docket Number: No. 392,392
• Parties: SUTTON et al. v. SUTTON et al.

Page 157

73 S.E.2d 157

236 N.C. 495

SUTTON et al. v. SUTTON et al.

No. 392

Supreme Court of North Carolina.

Nov. 19, 1952

Jones, Reed & Griffin, Kinston, for defendants-appellants.

Sutton & Greene, Kinston, for plaintiffs-appellees.

DENNY, Justice.

The words 'without lawful heirs' as used by Julius E. Sutton in Item 5 in his last will and testament will be construed to mean 'without lawful issue.' Massengill v. Abell, 192 N.C. 240, 134 S.E. 641; Hudson v. Hudson, 208 N.C. 338, 180 S.E. 597; Williamson v. Cox, 218 N.C. 117, 10 S.E.2d 662.

The determinative question on this appeal is whether the deeds executed by the devisees named in the last will and testament of Julius E. Sutton constituted a mere partition of the devised land, or were they sufficient to convey the contingent as well as the vested interest therein of the several grantors to the respective grantees.

Ordinarily, a voluntary partition of land between or among tenants in common, even when accompanied by deeds, has, in law, only the effect of an assignment to each of the several tenants of his share or part of the common property. Such partition creates no new estate and conveys no title but merely severs the unity of possession and ascertains and fixes the physical boundaries of the several parts of the common property to be allotted and held in severalty by the respective tenants. Wood v. Wilder, 222 N.C. 622, 24 S.E.2d 474; Valentine v. North Carolina Granite Corp., 193 N.C. 578, 137 S.E. 668; Virginia-Carolina Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646; Beacom v. Amos, 161 N.C. 357, 77 S.E. 407; Jones v. Myatt, 153 N.C. 225, 69 S.E. 135; Harrington v. Rawls, 136 N.C. 65, 48 S.E. 571; Carson v. Carson, 122 N.C. 645, 30 S.E. 4; Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L.R.A 722; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435, 6 Am.St.Rep. 574; 40 Am.Jur., Partition, Section 126, page 106.

Likewise, a proceeding to partition land, unless the title has been put in issue, has the effect only of allotting to each tenant his share in severalty but does not create any title that the tenants did not formerly hold. Weston v. John L. roper Lumber Co., 162 N.C. 165, 77 S.E. 430; Stallings v. Walker, 176 N.C. 321, 97 S.E. 25; Nobles v. Nobles, 177 N.C. 243, 98 S.E. 715; Bailey v. Mitchell, 179 N.C. 99, 101 S.E. 511; Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431; Valentine v. North Carolina Granite Corp., supra, Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440.

On the other hand, where devisees who are tenants in common join in a partition proceeding and petition the court to allot to each of them their share of the lands devised, in severalty, in fee simple, free from the limitation over to them, respectively, in the event any of them should die without issue surviving, such petition will constitute a surrender and release of the right of survivorship. Baugham v. trust co., supra. Cf. Wallace v. Phillips, 195 N.C. 665, 143 S.E. 244.

It was also held in Beacom v. Amos, supra [161 N.C. 357, 77 S.E. 409], that a similar condition could be eliminated by deed, in which case the partition was by deed. The lands in question were devised subject to contingent interests. The devisees agreed upon a division of the lands and by deed conveyed to each other certain parts of the devised property 'so that they might hold the same in severalty, absolutely and in fee simple, free from any claims therein of the one party against the other, * * *.' The Court said: 'They have conveyed to each other all the interest and estate in the land they acquired under said will, both vested and contingent. * * * It is perfectly clear that the intention, as evidenced by the deeds, was that each should have and enjoy her several portion as the absolute and unconditional owner thereof in fee, so that the right of survivorship created by the limitation in the will should cease and determine, and an indefeasible estate should vest instead thereof.'

We hold that where deeds are exchanged in a voluntary partition of land, and such deeds do not purport to convey the land described therein, but merely to release and quitclaim the interest of the grantors in and to the described premises, that such deeds will not create new estates or change the character of the title held by the partitioners prior to the execution of the deeds. But, on the other hand, where partition deeds purport to bargain, sell, quitclaim, and convey all the right, title interest, and estate of the grantors in the described premises, in fee simple, such deeds do more than merely set apart each to the...