Singleton v. . Cherry

BeowN, J. Tbis suit was instituted by tbe feme plaintiff against tbe defendants to recover an undivided one-fourtb interest in tbe borne place of Robert C. Cberry, wbo was tbe father of tbe defendants and. of tbe former busband of tbe feme plaintiff. Tbe plaintiffs allege tbat tbe land belonged to Harriet C. Cberry or Cornelia H. Cberry, tbe wife of R. C. Cberry, and tbat upon ber death it descended to ber four sons as ber heirs at law, and tbat tbe interest of Alonzo Cberry, one of ber sons, passed by bis will to Mrs. Singleton, tbe wife of Alonzo Cberry, now deceased. Mrs. Cornelia Cberry died intestate in 1886, and her busband, Robert C. Cberry, died in 1911, leaving a will in which be devised tbe land to Macon, Claud, and Yilla Cberry, tbe defendants in tbis action. Alonzo Cberry, tbe other son, died without issue, 10 January, 1903, leaving a will in which be devised all of bis property to tbe feme plaintiff, except such as be might inherit from bis father’s estate, “which will go to my half-brothers and sisters.” He bad no half-brothers and sisters, tbe defendants being bis full brothers, but be bad one half-sister, a minor child by bis father’s second wife. Tbe land in question was sold under an execution on 1 July, 1878, issuing against Robert C. Cberry, and was purchased at tbat sale by George H. Brown, for tbe sum of $5. On 10 April, 1879, Brown and wife executed a deed in fee to Cornelia Cberry. On 19 April, 1886, she executed a deed to ber said busband. Tbis deed was witnessed by one Oongleton and probated and recorded 4 September, 1893, after tbe grantor’s death. No privy examination was ever taken and none appears in tbe probate. On 6 November, 1882, Cornelia Cberry executed a deed to ber said busband for said land, which was probated and privy examination taken by a justice of peace 6 November, 1882. Tbe defendant has abandoned tbe position tbat Cornelia Cberry acquired no title through tbe -Brown deed, and now claims under tbe two deeds above recited. *404 It is not necessary to consider tbe charge of the judge as to the presumption of delivery arising from registration after the death of the grantor, as we are of opinion that both deeds by Mrs. Cherry to her husband are void on their face for lack of proper probate. The deed of 1886 has no privy examination, and we -find no sufficient evidence that Mrs. Cherry held the land in trust for her husband. It is well settled that even where the husband conveys his property direct to the wife, or causes it to be conveyed to her, the law presumes that it is a gift, and no resulting trust arises. The other deed of 6 November, 1882, from Cornelia Cherry to her husband, under which the defendants claim, has the ordinary privy examination in due form, but the provisions of the Revisal, sec. 2101, have not been complied with. This section requires certain findings and conclusions of the probate, officer to be made with reference to contracts between the wife and husband in relation to her separate property. While the act of 1911, chapter 109, known as the Martin Act, provides that a married woman may contract and deal so as to affect her real and personal property as if she were a feme sole, it excepts contracts between herself and her husband. We are of opinion that in a conveyance of the landed estate of a wife by herself to her husband, the requirements of section 2107 must be observed. In this case, so far as the evidence shows, the wife undertook to convey to .the husband her entire landed estate. At least the evidence does not disclose that she had any other real property. • We do not think'that the Martin Act intended, in such a transaction between the husband and wife, that the safeguards provided by the statute for the protection of married women should be set aside. It is a mistake to suppose that the case of Rea v. Rea, 156 N. C., 530, relied upon by the defendant, applies to the facts of this case, or is any authority that, in the conveyance of real property by the wife to the husband, the provisions of the statute, Revisal, 2107, are dispensed with. In the Rea case the wife owned some shares of stock in the cotton mills and indorsed them to her husband, intending them as a gift. The majority of the Court held that that particular transaction was a valid transfer of the stock, without complying with the said statute. Vann v. Edwards, 135 N. C., 662. No error.