Potts v. . Payne

Claekson, J. Both plaintiff and defendants appealed and assigned errors to the judgment rendered by the court below (1) defendants appealed from the charge of the court below, and (2) plaintiff appealed from the judgment in the court below adjudging: “It is further, ordered, adjudged and decreed that the defendants have and recover of the plaintiff the full sum of $7,500 which she offered to restore, as set out in paragraph 4 of her reply, and that said $7,500 shall be a lien upon her one-half undivided interest in the property above described.” The charge of the court below held, in effect, (1) that the deed of separation and deed from plaintiff to her husband, P. L. Payne, for the land in controversy, held by the entirety by the husband and wife was void; (2) it was not color of title and after the decree for divorce absolute in 1925 the husband and wife held the land as tenants in common, and the plaintiff was entitled to one-half of the land in controversy, and the consideration paid by the husband to the wife was a charge on her half interest. In McKinnon v. Caulk, 167 N. C., 411, 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. In Freeman v. Belfer, 173 N. C., 581, it is held by a majority decision that a divorce a mensa et thoro does not sever the marital relationship of husband and wife so as to make them tenants in common of lands held by them in entirety, or to effect a change in the doctrine of title by survivorship between them. In the Freeman case, supra, Clark, C. J., and Brown, J., dissent, Brown, J., at p. 590, says: “I think it best to settle the matter by holding that when husband and wife are separated by decree a mensa they at once become tenants in common of property held in entirety.” In the case of Kornegay v. Price, 178 N. C., p. 441, is the following: “It seems to be well settled that, owing to the unity of husband and wife, adverse possession cannot exist between them so long as the coverture continues. But where the marital relations have been terminated by divorce or abandonment, it seems that one may acquire title from the other by adverse possession. 1 A. & E., p. 820, sec. 11.” *250 It is well settled that if the husband abandons his wife she can convey her real estate without joinder of her husband. Keys v. Tuten, 199 N. C., 368. This Court has consistently held that a deed from a wife to her husband that does not comply with C. S., 2515 is void. In Capps v. Massey, 199 N. C., at p. 198, citing numerous authorities, we find: “C. S., 2515, requiring the probate officer, as a condition precedent to the validity of the conveyance to certify in his certificate of probate that, at the time of its execution and the wife’s privy examination, such contract was 'not unreasonable or injurious to her.’ This having been omitted, in the instant case, the deed in question is void as to the plaintiff. . . . In Whitten v. Peace, supra (188 N. C.), at p. 302-3, we find ‘This Court has held, in Norwood v. Totten, 166 N. C., 649, that a deed executed by a wife conveying land to her husband, void for failure of the probate officer to comply with C. S., 2515, is, nevertheless, color of title, and that adverse possession by the husband under such a deed for seven years will ripen into a perfect title.” We do not think it necessary to decide (1) whether the deed of separation between plaintiff and her former husband P. L. Payne, which conveyed for a consideration to P. L. Payne and his heirs and assigns, the property in controversy held by the entirety; (2) or the deed from plaintiff to P. L. Payne and his heirs and assigns conveying the said land, are valid. Both of said instruments, in reference to the execution by plaintiff, complied with statutes heretofore cited and were executed and delivered on 21 March, 1922, the deed of separation first and thereafter the deed which referred to the deed of separation. Conceding, but not deciding, that these instruments were void, yet, by analogy to the cases above quoted, they were at least color of title. Defendant pleads C. S., 428, as follows: “When a person or those under whom he claims is and has been in possession of any real property, under known and visible lines and boundaries and under colorable title, for seven years, no entry shall be made or action sustained against such possessor by a person having any right or title to the same, except during the seven years next after his right or title has descended or accrued, who in default of suing within that time shall be excluded from any claim thereafter made; and such possession, so held, is a perpetual bar against all persons not under disability.” C. S., 408: “In any action in which the defense of adverse possession is relied upon, the time computed as constituting such adverse possession shall not include any possession had against a feme covert during coverture prior to February thirteenth, one thousand eight hundred and ninety-nine.” Carter v. Reaves, 167 N. C., 131; Thomas v. Conyers, 198 N. C., 229. *251 ¥e think the evidence of adverse possession for seven years under color of title should have been submitted to the jury. From the position here taken, we do not think it necessary to pass on plaintiff’s appeal. For the reasons given, there must be a New trial.