Ijames v. Swaim , 248 N.C. 443 ( 1958 )

103 S.E.2d 507 (1958) 248 N.C. 443

Hazel IJAMES and husband, Howard I James; Undine Jackson and husband, Ellis Jackson; Hildreth Haney and husband, Clay Haney; C. Wayland Swaim; Darrell B. Swaim and wife, Bertha Swaim; and Homer Lee Swaim, by Darrell B. Swaim, Attorney In Fact,
v.
William Sherman SWAIM and wife, Janice A. Swaim.

No. 599.

Supreme Court of North Carolina.

May 21, 1958.

D. C. McRae, Haworth & Riggs, by John Haworth, High Point, for plaintiffs, appellants.

York & York, by C. A. York, Jr., High Point, for defendants, appellees.

HIGGINS, Justice.

For the purposes of this appeal, the parties agree the judgment below is correct unless the consent decree in the partition proceeding operates as a conveyance of Lots Nos. 1 and 11 to Homer L. Swaim. The decree must be interpreted in the light of the matters in controversy in the proceeding and the purposes the parties thereto intended to accomplish by it.

Prior to the institution of the partition proceeding the plaintiffs' ancestor, Homer L. Swaim, had sold and conveyed by deed all his interest in the A. B. Swaim estate to Sherman Swaim. The parties stipulate this deed conveyed the grantor's interest in fee. However, Homer's wife, Estelle Swaim, did not sign the deed. Hence her inchoate right of dower did not pass by the deed.

Two of the heirs of A. B. Swaim, Mrs. Weir and Mrs. Welch, instituted the partition proceeding for the purpose of having each tenant's share allotted according to his interest, 1/6 each to Mabel Weir, Cora Welch, Marie Moore, and Cay Swaim Powell; and 1/3 to Sherman Swaim. Sherman acquired 1/6 by inheritance and 1/6 by Homer's deed. In drafting the petition and the orders pursuant thereto, the parties and their counsel realized that Estelle Swaim Homer's wife, not having signed his deed, would be entitled to dower in Homer's share should she survive him. The provisions in the petition, order for partition, the report of the commissioners were all so drawn as to separate and identify that part of the estate which Sherman acquired under Homer's deed in order that the land to which Estelle's dower might attach, in the event she survived Homer, would be identified and the other tracts be entirely free from her claim.

The commissioners made due report of their partition and allotment of shares. Exceptions were filed to the report. The parties thereupon entered the consent decree involved here. The decree served to change the report of the commissioners only to the extent that tract No. 1, allotted to Mrs. Moore, was re-allotted to H. L. Swaim and Sherman Swaim, and that tract No. 5, allotted to them, was re-allotted to Mrs. Moore. The 1/6 interest which Sherman inherited from the estate was allotted as tracts Nos. 6 and 7.

The sole purpose of the partition proceeding was to sever the unity of possession and fix the boundaries of the respective shares and allot to each his share in accordance with his interest in the whole. Homer Swaim had made a deed. His interest was gone. Nothing in the proceeding suggests an intent on his part to buy back into the estate or an intent on the part of any tenant in common to sell or give, or restore to him any interest therein. The whole proceeding manifests a clear intent to the contrary. Edwards v. Batts, 245 N.C. 693, 97 S.E.2d 101; Elledge v. Welch, 238 N.C. 61, 76 S.E.2d 340; Duckett v. Lyda, 223 N.C. 356, 26 S.E.2d 918; Martin v. Bundy, 212 N.C. 437, 193 S.E. 831; Valentine v. North Carolina Granite Corp., 193 N.C. 578, 137 S.E. 668.

The course of conduct of all parties to the consent decree serves to confirm the defendants' contentions that Homer Swaim retained no part in his father's estate. The record fails to disclose any move by Homer Swaim or his heirs to assert any claim under the partition decree until the plaintiffs brought this suit on March 28, 1957, more than 27 years after the decree was entered, and almost 30 years from the date he sold and conveyed his interest.

The plaintiffs cite Keen v. Parker, 217 N. C. 378, 8 S.E.2d 209, as authority for their contention the partition deed operates as a conveyance, notwithstanding no words of conveyance are used. Examination of that opinion will disclose that a number of questions arose in the proceeding: indebtedness, validity of deeds, etc. The parties settled their differences by mutual concession, arranging payments and cancellations of certain conveyances, and signed the judgment accordingly. On the other hand, in this case Homer was out of the state and out of the estate. He neither claimed nor conceded anything.

The decision of Judge Sharp is fully sustained by many decisions of this Court, among them: Edwards v. Batts, supra; McLamb v. Weaver, 244 N.C. 432, 94 S.E.2d 331; Elledge v. Welch, supra; Southerland v. Potts, 234 N.C. 268, 67 S.E.2d 51; Wood v. Wilder, 222 N.C. 622, 24 S.E.2d 474.

For the reasons here assigned, the judgment is

Affirmed.