Faucette v. Griffin

HEDRICK, Judge. Summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Rule 56(c). In an action to remove a cloud on title to real property the plaintiff assumes the burden of proving “a title good against the whole world or good against the defendant by estoppel.” Mobley v. Griffin, 104 N.C. 112, 114 (1889). To sustain this burden upon a motion for summary judgment the plaintiff must present uncontroverted facts sufficient to establish superior title in himself by any of the methods enumerated in Mobley v. Griffin, supra at 115. In this action plaintiff attempted to connect the defendant with a common source of title, and show in herself a superior title from that source. “To so establish . . . [her] title, plaintiffs must not only trace title to a common source, but . . . [she] must trace title to [11] the land in controversy to that source. [Citations omitted.] The plaintiffs must fit the descriptions in their chain of title and in the defendant’s chain of title to the land claimed and show that the land claimed is embraced within their respective descriptions. [Citations omitted.]” Allen v. Hunting Club, 14 N.C. App. 697, 700, 189 S.E. 2d 532, 534 (1972); see also Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). Defendants contend, and we agree, that the record before the trial judge did not connect plaintiff’s title to the land in dispute to the common source because none of the evidence offered in support of the motion for summary judgment established the fact that the land purportedly conveyed by Gladys Griggs to The First and Citizens National Bank on 15 March 1935 was the same property described in plaintiff’s chain of title, the complaint, and the defendants’ chain of title. The property is described in that deed as: “All of the right, title and interest of the said Gladys Newbern Griggs in and to all of the estate and property, real and personal, belonging to the late Dr. J. M. Newbern, deceased, at the time of his death (except that certain farm in Currituck County, known as the Court House Farm).” Defendants’ admission that the parties claimed title to the disputed property from a common source falls short of fitting the property described in plaintiff’s chain of title to the description in the deed from Gladys Griggs to the bank. The materiality of this issue of fact is obvious. Defendants also contend that plaintiff cannot connect her title to the common source because the deed from Gladys Griggs to The First and Citizens National Bank of Elizabeth City, dated 15 March 1935, is void since it does not bear her husband’s assent. According to constitutional provisions in effect in 1935, a deed purporting to convey real property of a married woman without the written assent of her husband was “inoperative as a deed and conveys nothing.” Buford v. Mochy, 224 N.C. 235, 239, 29 S.E. 2d 729, 732 (1944). See also Cruthis v. Steele, 259 N.C. 701, 131 S.E. 2d 344 (1963); Harrell v. Powell, 251 N.C. 636, 112 S.E. 2d 81 (1960); Webster, Real Estate Law in North Carolina, § 382(f)(1) (1971). Plaintiff argues that such deeds have been validated by G.S. 39-7.1, which provides: “No conveyance, ... or other instrument affecting the estate, right or title of any married woman in lands, tenements or hereditaments which was executed by such married woman prior to June 8, 1965, shall be invalid for the [12] reason that the instrument was not also executed by the husband of such married woman.” However, in Mansour v. Rabil, 277 N.C. 364, 376, 177 S.E. 2d 849, 857 (1970), Justice Moore in discussing a similar curative statute (G.S. 39-13.1 purporting to validate all deeds executed prior to 7 February 1945 by married women who had not been privately examined) stated that “[a] void contract cannot be validated by a subsequent act, and the Legislature has no power to pass acts affecting vested rights.” See also Booth v. Hairston, 193 N.C. 278, 136 S.E. 879 (1927). On the other hand, certain established principles of estoppel might be applicable to the facts of this case. It is true that during coverture a married woman could deny the validity of a deed executed without the assent of her husband. However, once the marriage relation was severed by the death of the husband or divorce a woman was estopped from “recovering] the land or defeating] the title of her grantee, or those in privity with him” because of the lack of assent. Cruthis v. Steele, supra at 703, 131 S.E. 2d at 346; Harrell v. Powell, supra; Buford v. Mochy, supra. The issue of the marital status of Gladys Griggs at the time she executed the deed to The First and Citizens National Bank and thereafter until she executed the deed to S. B. Baugham, Jr., dated 11 May 1949, is squarely raised by the evidence offered in support of and in opposition to the motion for summary judgment. The materiality of this issue to the ultimate disposition of the claims of the parties is demonstrated by the principles of law set out above. Because the evidence relevant to the issues raised by the pleadings has not been fully developed, and all the issues of material fact necessary to a resolution of the dispute between the parties has not been determined, we have purposely not elaborated on or applied all of the legal principles discussed in the parties’ briefs. We have pointed out some of the principles of law which may be significant in the final disposition of the cause only to demonstrate the materiality of some of the facts in controversy. To do more at this stage of the proceeding would serve no useful purpose. We hold the record before us presents genuine issues of material fact for trial, and the court erred in entering summary judgment for plaintiff. The judgment appealed from is reversed [13] and the cause is remanded to the Superior Court of Dare County for further proceedings. Reversed and remanded. Judges Morris and Arnold concur.