McLamb v. Weaver , 244 N.C. 432 ( 1956 )

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94 S.E.2d 331 (1956) 244 N.C. 432
Bettle Weaver McLAMB and husband, Oscar Robert McLamb, Jr.,
v.
Nora Hudson Scott WEAVER, Bertha Weaver Cates and husband, Billy Wray Cates and Hicks Walker.
No. 668.
Supreme Court of North Carolina.
September 19, 1956.
*334 Bryant, Lipton, Strayhorn & Bryant, Durham, for defendants-appellants.

Spears & Spears, Wallace Ashley, Jr., and C. S. Hammond, Durham, for plaintiffs-appellees.

BOBBITT, Justice.

Decision turns on the answer to this question: Did the purported deed divest Bertha Weaver of sole ownership of tracts Nos. 3 and 10 and vest title thereto in Charlie Weaver and wife, Bertha Weaver, as tenants by the entirety? The court below answered "no" and we are in accord.

The Clerk's decree of 30 January, 1926, confirmed the allotment by the commissioners to Bertha Weaver of tracts Nos. 3 and 10. The partition proceeding created no new estate and conveyed no title. The sole effect thereof was to sever the unity of possession and to fix the physical boundaries of the several parts of the common property to be held in severalty by the respective tenants. Southerland v. Potts, 234 N.C. 268, 67 S.E.2d 51; 68 C.J.S., Partition, § 151f; 40 Am.Jur., Partition sec. 126. See also, Elledge v. Welch, 238 N.C. 61, 76 S.E.2d 340, and Sutton v. Sutton, 236 N.C. 495, 73 S.E.2d 157. Title vested in Bertha Weaver as a child and heir at law of her father, not by virtue of the partition proceeding.

No title vested in the commissioners. Their duty was to make actual partition among the tenants in common and to make a full report thereof. G.S. § 46-10; G.S. § 46-17. After performing this duty, they had no other function or authority. Clinard v. Brummell, 130 N.C. 547, 41 S.E. 675. They had no authority "to sell and convey" any portion of the William A. Hardcastle land, nor was there any court order purporting to authorize them to do so. Hence, their purported deed conveyed nothing to "Charlie Weaver and wife, Bertha Weaver."

It is noted that Bertha Weaver is not named as grantor in the purported deed. The commissioners, as grantors, undertake to make the conveyance. They acknowledge receipt of the recited consideration. Bertha Weaver signed the deed for the purposes expressed in two separate paragraphs thereof. In the paragraph immediately following the habendum clause, she requested that the commissioners *335 "allot her interest in the above described property to herself and her husband, Charlie Weaver, as tenants by the entirety." But the commissioners had already allotted tracts Nos. 3 and 10 to her, individually, and such allotment had been confirmed. Moreover, the authority of the commissioners was to partition the land among the tenants in common. G.S. § 46-10. In the paragraph immediately preceding the habendum clause, she requested that "this deed be not made to her but to her and her husband, Charlie Weaver, as tenants of the entirety." Although the commissioners attempted to comply with such request, their attempted conveyance was a nullity.

True, technical operative words of conveyance are not required. Waller v. Brown, 197 N.C. 508, 149 S.E. 687. Even so, the words used in the purported conveyance must be such that, upon liberal construction thereof, they suffice to operate presently as a transfer of the grantor's interest to the grantee. Apart from any operative words of conveyance, the mere expression of an intention is insufficient to constitute a conveyance. Pope v. Burgess, 230 N.C. 323, 53 S.E.2d 159.

Upon the record, we are constrained to hold that Bertha Weaver did nothing more than express an intention that her share in her father's estate be held by herself and her husband as tenants by entirety; and that this expression of her intent was not sufficient to operate as a conveyance by her to her husband of any interest in her land.

For the reasons stated, the judgment of the court below is affirmed.

Affirmed.

JOHNSON, J., not sitting.

DEVIN and RODMAN, JJ., took no part in the consideration or decision of this case.