Scott v. Moser

PARKER, Judge. The trial court rested its judgment upon two grounds: first, that the plaintiffs were under a mutual mistake of fact and of law such as to entitle them to have the. deeds reformed; and second, that the deeds were cross deeds of partition which conveyed no rights to the wards of the appellant. We find the second ground sufficient to support the judgment and affirm. *274 When G. Wes- Scott, died intestate,- fee 'simple title to- his lands, vested in .his three children, Cray, Irene, and Maude, as tenants' in. common.’ (Their title was,-, of'course,, subject to their mother’s dower rights,- but such, rights were released in 'exchange for. their agreement t.o support their mother; the record indicates that.this-agreement has.been honored"and no question concern-ir^ |he widow’s (lower fights has been raised on this .appeal.) The,tliree .childrenj'being the.fee simple owners','of the lands, ás tenants' in common,1 agreed among'themselves upon a 'division óf the lands into three'’portions and agreed which portion .each should'receive.. Cross déeds of partition were executed to carry out this partition agreement.'The deed for Maude’s share (Exhibit B) was made to, her-and .to her daughter. The deed for Irene’s share1 (Exhibit C) was made to her-and to her husband. All.three deeds purported to. convey . remainder interests-to appellant’s wards ■ after • a life estate -or ■ estates in the named grantee or grantees. •'. > - ■■ - ■ ' We find decision, of this case controlled by the decision in Harrison v. Ray, 108 N.C. 215, 12 S.E. 993 (1891). In that case one Oakley Harrison and his brothers.¿and ¡sjsters divided lands, inherited by them from their father, by deeds of partition. The deed for- Oakley Harrison’s^ share was made to 'him and his wife,'Juda.'-Thereafter Oakley'died and Juda married the defendant, David Ray. The plaintiffs, who-were Oakley Hárrisbíhs children by-: his first wife, 'brought suit against • Juda. and' her new husband,1 David Ray, to recover the land described in the deed to Oakley-and'Juda. They alleged that fhe -name of Júdá was inserted in the. deed by mistake and.: inadvertence of- the draftsman. At the trial, the court submitted as the first, issue whether .the name of juda wás inserted in the deed by mistake. The jury answered the. issue against the plaintiffs, who then moved for judgment n.o.v. and excepted to refusal of'the motion. On appeal, our Supreme Court reversed. The opinion of the Court, written by Clark, J. (later C.J.), contains the following: “[T]he deed to Oakley Harrison and wife operated merely as a partition of the lands and conveyed no estate to them. The land in controversy was the share of Oakley Harrison in the lands inherited by him and his brothers and sisters; This tract was ascertained to be his- share by the- consent partition, which was had in lieu of legal proceedings ■ to appoint commissioners to mark it off and assign, it. It is not claimed that Juda, the wife, had any interest, in-the land *275 so that anything should have been assigned her, but. it is contended- that by Oakley Harrison’s direction the deed was drawn to hito and his wife jointly.-Suppose this to be so. The grantors were not conveying any additional estate or interest to Oakley Harrison. He had bought nothing and they were not making him a present of anything;. The deed only assigned to him in severalty ahd by metes and bounds what was already his-. The grantors conveyed no part Of- their shares. They had no interest in the share embraced in'the deed to Oakley Harrison, and could convey no interest therein to him or anyone else. It was his by the conveyance from his father. He received no title nor estate by virture of the deed froto. his ' brothers and sisters, nor could his wife. His direction to tile cither heirs (if given) to convey to himself and wife could not have the. effect to make the deed á'conveyance of . anything to his wife, when.it was not such as to himself. The title being already in him, the deed merely designatéd ; his share by metes and bounds, and allotted it to bé held ip’ severalty. No title passed by the deed, nor by any of the deeds. ‘Partition makes no degree. It only adjusts the different- rights of the parties to the possession. Each does not take the allotment by purchase, but is as much seized of it by descent from the common ancestor as of the undivided share before partition.’ Allnatt on Partition, 124. The deed of partition destroys the unity of possession, and ■ henceforward’ each holds his share in severalty, but such deed confers no new title or additional estate in the land. 2 Bl. Com., 186. Hence it is that, in partition, whatever the form of the deed, there is an implied warranty of title by each tenant to all the others. Huntley v. Cline, 93 N.C., 458.” Harrison v. Ray, supra at 216-217. The principles announced in Harrison v. Ray, supra, have been consistently followed in the years since that case was decided. For example, in Elledge v. Welch, 238 N.C. 61, 76 S.E. 2d 340 (1953), Johnson, J., speaking for our Supreme Court, said (at page 66) : “Deeds between tenants in common, when the purpose is partition, operate only to sever the unity of possession and convey no title. Each party holds precisely the same title which he had before the partition, and neither co-tenant derives any title or interest from his cotenants, the *276 theory being that the undivided interest held by each in the whole tract is severed by the partition from the interests of the others and concentrated in the parcel set apart to each, with the interests of the others being excluded therefrom. (Citations omitted.) Accordingly a deed made by one tenant in common to a cotenant and the latter’s spouse in partitioning inherited land or land held as a tenancy in common, does not create an estate by the entirety or enlarge the marital rights of the spouse as previously fixed by law.” Applying the principles announced in Harrison v. Ray, supra, and in Elledge v. Welch, supra, to the case now before us, the cross deeds of partition which were executed between the tenants in common operated only to sever the unity of possession.. They conveyed no title. Thus, neither Maude’s daughter, nor Irene’s husband, nor any ward represented by the defendant guardian ad litem obtained any title or interest by virtue of any of the partition deeds. The judgment appealed from is Affirmed. Chief Judge Bkock and Judge Arnold concur.