Ingram v. Easley

Barnhill, J.

Counsel for the plaintiff earnestly insists that the record fails to disclose that the deed from Crutchfield to Ingram was offered in evidence and therefore it should not be considered by the Court. This deed appears in the case agreed, signed by them. The stipulation of facts makes reference thereto. Furthermore, this deed is the source of the title to which plaintiff makes claim. No reason why it should be disregarded is made to appear.

*444 They further contend that while the record discloses that in 1928 Mildred S. Ingram acquired title to the lot conveyed to Crutchfield in exchange for the locus, ownership at the time of the exchange is controlling, and the evidence “in no way denies or disproves that Henry TV. Ingram had acquired (it) by purchase or gift” prior to the time it was conveyed to Crutchfield as consideration for the lot in controversy. The answer is simple. The case agreed discloses the title upon which defendant relies. If there is any other deed or document which tends to disprove her title or to strengthen the claim of plaintiff, it was his duty to offer it in evidence. The Court will not assume the existence of documents about which there is no proof but will decide the case upon the facts appearing of record.

Having disposed of these preliminary questions raised by the appellee, we come to the two questions posed by the appeal: (1) Does the deed from the Crutchfields to the Ingrams dated 2 May 1933 on its face purport to convey an estate by entirety to the grantees therein, and (2) If so, did said deed in fact convey any interest or estate to said Henry TV. Ingram? TVe are constrained to answer each question in the negative.

It is apparent the Crutchfield deed conveyed nothing to Henry TV. Ingram. His name appears only in the introductory recital giving the names of the parties. In the granting clause the land is conveyed to “said party of the second part, her heirs and assigns.” The estate conveyed is so limited in the habendum clause and warranty of title is to like effect.

In the event of any repugnancy between the granting clause and preceding or succeeding recitals, the granting clause will prevail.

Williams v. Williams, 175 N. C., 160 , 95 S. E., 157 ; 16 A. J., 575.

But we are not required to rest decision solely on the clear intent of the deed as expressed by the language used therein. Even if we concede, arguendo, the deed discloses an intent to convey the land to the grantees therein as tenants by entirety, the husband took nothing thereunder.

The property given in exchange and as the consideration for this conveyance was a part of the separate estate of the feme grantee. She alone was entitled to the conveyance.

To create an estate by entirety the spouses must be jointly entitled as well as jointly named in the deed and so “if the wife alone be entitled to a conveyance, and it is made to her and her husband jointly, the latter will not be allowed to retain the whole by survivorship.”

Sprinkle v. Spainhour, 149 N. C., 223 ;

Speas v. Woodhouse, 162 N. C., 66 , 77 S. E., 1000 .

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 — testamentar y de *445 vises excepted — otherwise than as therein provided is void.

Sprinkle v. Spainhour, supra; Speas v. Woodhouse, supra; Singleton v. Cherry, 168 N. C., 402 , 84 S. E., 698 ;

Deese v. Deese, 176 N. C., 527 , 97 S. E., 475 ;

Davis v. Bass, 188 N. C., 200 , 124 S. E., 566 ;

Best v. Utley, 189 N. C., 356 , 127 S. E., 337 ;

Garner v. Horner, 191 N. C., 539 , 132 S. E., 290 ;

Caldwell v. Blount, 193 N. C., 560 , 137 S. E., 578 ;

Capps v. Massey, 199 N. C., 196 , 154 S. E., 52 ;

Fisher v. Fisher, 218 N. C., 42 , 9 S. E. (2d), 493 .

This rule applies to a conveyance of land in trust for the husband, Best v. Utley, supra; Davis v. Bass, supra; Garner v. Horner, supra; Fisher v. Fisher, 217 N. C., 70 , 6 S. E. (2d), 812 ; notes payable to husband and wife, received in consideration for a conveyance of the wife’s land, Kilpatrick v. Kilpatrick, 176 N. C., 182 , 96 S. E., 988 ; a conveyance to husband and wife when the land was purchased with the wife’s money;

Deese v. Deese, supra;

separation agreements, Taylor v. Taylor, 197 N. C., 197 , 148 S. E., 171 ; a consent judgment transferring the wife’s property to her husband, Ellis v. Ellis, 193 N. C., 216 , 136 S. E., 350 ; and to any other transaction the effect of which is to convey the wife’s separate real estate to the husband “for a longer time than three years next ensuing the making of such contract.” G. S., 52-12.

Upon the death of Mildred S. Ingram her husband became entitled to possession of the locus for life as tenant by curtesy with remainder in the defendant. Henry "W". Ingram being now deceased, the defendant is the owner of the property in fee and the plaintiff is possessed of no right thereto or interest therein. Hence the judgment below is Reversed.