Willis v. Willis

• Decision Date: 16 November 1932
• Docket Number: 409.
• Citation: 166 S.E. 398,203 N.C. 517
• Parties: WILLIS v. WILLIS et al.
• Court: North Carolina Supreme Court

166 S.E. 398

203 N.C. 517

WILLIS v. WILLIS et al.

No. 409.

Supreme Court of North Carolina

November 16, 1932

Appeal from Superior Court, Davidson County; Harding, Judge.

Action by Mary Willis against Will Willis and another. From a judgment in favor of plaintiff, defendants appeal.

No error.

It was not necessary for grantee seeking possession of land conveyed with warranty by grantor, who later acquired title, to plead estoppel.

The facts: (1) J. L. Michael and wife, L. B. Michael, on April 25, 1921, conveyed a certain lot of land located in the city of Lexington, Davidson county, N. C., describing same by metes and bounds, to Will Willis and Mary Willis, who were husband and wife. Said deed is recorded in the office of the register of deeds for Davidson county, N. C., Book 109, p 142. The consideration was $450. (2) Will Willis, on June 19 1928, conveyed one-half interest in the said land to the plaintiff, Mary Willis, "in consideration of one dollar and other considerations." In said deed is the following warranty clause: "And the said party of the first part for themselves and their heirs, executors and administrators covenant with said party of the second part, heirs and assigns, that he is seized of said premises in fee and has right to convey the same in fee simple; that the same are free and clear from all encumbrances, and that he does hereby forever warrant and will forever defend the said title to the same against the claims of all persons whomsoever." Said deed is duly recorded in the office of the register of deeds for Davidson county, N. C., Book 109, p. 198.

At the February term, 1931, of Davidson county superior court, Will Willis was decreed an absolute divorce from Mary Willis, on the ground of adultery, "that the bonds of matrimony between the plaintiff and defendant be forever dissolved." The plaintiff, Mary Willis, brought this action against defendants for the possession of the land. Defendants denied plaintiff's right to recover on the grounds: (1) That the deed of Will Willis to Mary Willis executed on the 19th day of June, 1928, is void and does not convey any interest whatsoever; (2) That the consideration was that the plaintiff stay at home as a wife should do and "quit running around with other men."

It is further more fully alleged by defendants: "That if said deed made by Will Willis to Mary Willis on the 19th day of June, 1928, did not reserve a life estate to Will Willis, there was a mistake and misunderstanding in the drafting of said deed and the execution of the same and this defendant Will Willis alleges that the said deed should be reformed to conform to the agreement. *** That the plaintiff knowingly and wilfully at the time the deed of Will Willis to Mary Willis was made, on the 19th day of June, 1928, entered into the agreement with the defendant, to stay at home and 'quit running around with other men,' for the purpose of cheating and defrauding the defendant Will Willis of his interest in the property described in paragraph two of the complaint, and did cheat and defraud the defendant by her promises (which promises were the making of and consideration of said deed) in obtaining his signature to said deed knowing full well at the time that she, the plaintiff, after securing said deed intended to abandon the defendant and live in illicit cohabitation with other men. *** That the plaintiff Mary Willis disregarded the consideration of the said deed referred to in paragraph two of the complaint dated June 19th, 1928, by immediately leaving and abandoning her husband Will Willis and immediately continuing her old life and living in fornication and adultery with one --. *** Wherefore the defendants pray: (1) That the deed of Will Willis to Mary Willis dated June 19th, 1928, be declared void. (2) That if said deed is not declared void that the same be reformed or set aside for want of consideration and violations of the terms and conditions under which said deed was delivered or be reformed to speak the truth. (3) For such further and other relief as may be just."

The issues submitted to the jury and their answers thereto were as follows:

"1. Is the plaintiff the owner and entitled to the immediate possession of the land described in the complaint? Ans. Yes.

"2. What amount, if any, is the plaintiff entitled to recover of the defendants for rent of said premises? Ans. Not anything."

On the verdict judgment was rendered for plaintiff. The defendants made numerous exceptions and assignments of error and appealed to the Supreme Court.

P. V. Critcher and Walser & Walser, all of Lexington, for appellants.

Spruill & Olive, of Lexington, for appellee.

CLARKSON J.

Will Willis and wife, Mary Willis, as husband and wife, held an estate by the entirety in a certain lot of land in Lexington, N.C. Will Willis conveyed one-half interest in the land to the plaintiff, his wife, on June 19, 1928. The deed had full covenants of warranty. Thereafter at February term, 1931, Davidson superior court, an absolute divorce was granted Will Willis from his wife, Mary Willis, on the ground of adultery.

The first question involved: Has plaintiff under the facts a fee-simple title to the land in controversy? We think so by estoppel.

In Dorsey v. Kirkland, 177 N.C. at page 522, 523, 99 S.E. 407, 409, is the following: "The deed under which the defendant claims having been made to him and his wife, they took an estate by entirety, which carried with it the right of survivorship, and neither acting alone could by deed destroy this right, or affect the estate of the other ( Freeman v. Belfer, 173 N.C. 581, 92 S.E. 486, L. R. A. 1917E, 886); but, while this is so, during the joint lives of the husband and wife the husband is entitled to the control and use of the land as his own property. *** In Bynum v. Wicker, 141 N.C. 96, 53 S.E. 478, 115 Am. St. Rep. 675, a mortgage executed by the husband alone was sustained, the court saying: 'This estate by entirety is an anomaly, and it is perhaps an oversight that the Legislature has not changed it into a cotenancy, as has been done in so many states. This not having been done, it still possesses here the same properties and incidents as at common law. Long v. Barnes, 87 N.C. 333. *** At common law "the fruits accruing during their joint lives would belong to the husband" (Simonton v. Cornelius, 98 N.C. 437, 4 S.E. 38); hence the husband could mortgage or convey it during the term of their joint lives--that is, the right to receive the rents and profits; but neither could incumber it *** so as to destroy the right of the other, if survivor, to receive the land itself unimpaired.' And in [Bank of] Greenville v. Gornto, 161 N.C. 342, 77 S.E. 222, 223, a lease for 10 years made by the husband was held to be valid, and the court said of the nature of the estate and the rights and powers of the husband during the life of the wife: 'As Brady and his wife held, not as tenants in common or joint tenants, but by entireties, their rights must be determined by the rules of the common law, according to which the possession of the property during their joint lives rests in the husband, as it does when the wife is sole seized."'

In Potts v. Payne, 200 N.C. at page 249, 156 S.E. 499, 500, is the following: "In McKinnon v. Caulk, 167 N.C. 411, 83 S.E. 559, L. R. A. 1915C, 396, it is held that a decree of absolute divorce destroys the unity of husband and wife, and therefore converts an estate by the entirety into a tenancy in common."

When Will Willis and Mary Willis were granted an absolute divorce, the estate by entireties was severed and they became tenants in common, except for the fact that Will Willis has already conveyed to Mary Willis.

In Hallyburton v. Slagle, 132 N.C. at page 952, 44 S.E 655, 657, we find: "In deed, it has been said to have been fully established as a principle by the best authority that the doctrine of estoppel applies to conveyances without warranty, where it appears by the deed that the parties intended to deal with and convey a title in fee simple. Graham v. Meek, 1 Or. 325; 1 Greenleaf on Ev. § 24. And if this is not true, the estoppel certainly arises when the conveyance of the land is...