Pope v. Burgess

Seawell, J. Conceding that survivorship may be annexed to a tenancy in common by adequate contract inter sese of the co-owners, and that the Act of 1184, now G.S. 41-2, abolishing survivorship incident upon joint tenancy by operation of law, does not bar or affect such action, we are then brought to the question whether the exhibited contract between the parties is adequate to accomplish that result. We may eliminate from consideration the deed of the administrator, made under the supposed authority of the contract, as neither aiding nor vitiating its effect, and treat it as mere separable surplusage. But, to become effective, there must be something left in the deed sufficient to presently convey or release the respective interests of the brothers as co-owners upon which the survivorship is predicated. Our courts have gone very far to sustain informal and non-technical instruments purporting to convey interests in real estate, either present, future, or contingent. But our research does not disclose any instrument where a simple expression of the intention to do so will supply the absence of words implying conveyance. It is true that technical operating words of conveyance are not necessary, but ordinary words, or words in common parlance or language of a similar import must be used. Waller v. Brown, 197 N.C. 508, 149 S.E. 687; Armfield v. Walker, 27 N.C. 580; Cobb v. *326 Hines, 44 N.C. 343; Scott v. Brown, 206 P. 572, 71 Colo. 275; King v. Coffey, 131 So. 796, 22 Ala. 245. The language used in the instrument under review, while sufficiently pointed as to the description of the property, and while the instrument itself is referred to as a conveyance, does no more than to state the intention of the parties respectively, that the survivor should have the property described without using any words or language which might, under the most liberal construction by the Court, be regarded as transferring a present interest. In fact the expression of intent is general, rather than specific, as to an ultimate result rather than the present means. Such operative words as are found are used in connection with the execution of the administrator’s deed, implying, we think, that the brothers had no conception of the necessity of executing the intent in praesenti, but that it might be carried out by the administrator or executor, or either, after the death of the contracting party. For these reasons the judgment of the court below finding a clear and unencumbered title in the plaintiff must be Reversed.