Hutchins v. Hutchins , 260 N.C. 628 ( 1963 )

133 S.E.2d 459 (1963) 260 N.C. 628

Charles Edward HUTCHINS, Jr.
v.
Carolyn Genevieve Davis HUTCHINS.

No. 666.

Supreme Court of North Carolina.

December 11, 1963.

Craige, Brawley, Lucas & Horton, Winston-Salem, for plaintiff appellee.

Otis M. Oliver and Foy Clark, Mount Airy, for defendant appellant.

BOBBITT, Justice.

"It is well established in this jurisdiction that where a husband and wife enter into a separation agreement and thereafter become reconciled and renew their marital relations, the agreement is terminated for every purpose in so far as it remains executory. (Citations) Even so, a reconciliation and resumption of marital relations by the parties to a separation agreement would not revoke or invalidate a duly executed deed of conveyance in a property settlement between the parties." Jones v. Lewis, 243 N.C. 259, 261, 90 S.E.2d 547, and cases cited; Harrell v. Powell, 251 N.C. 636, 641, 112 S.E.2d 81; Stanley v. Cox, 253 N.C. 620, 629, 117 S.E.2d 826.

Too, "(i)t is well settled in this State that a conveyance from one spouse to the other of an interest in an estate held by the entireties is valid as an estoppel when the requirements of the law are complied with in the execution thereof." Jones v. Lewis, supra, 243 N.C. p. 262, 90 S.E.2d p. 550, and cases cited; Edwards v. Arnold, 250 N.C. 500, 506, 109 S.E.2d 205.

Prior to the separation agreement of July 26, 1958, plaintiff and defendant, husband and wife, owned the subject property as tenants by the entirety.

Plaintiff contends defendant, by the terms of the separation agreement of July 26, 1958, conveyed to him, as part of the property settlement then made, all her right, title and interest in the subject property. If so, under Jones v. Lewis, supra, the subsequent reconciliation(s) and resumption(s) of marital relations did not revoke or invalidate such conveyance.

In paragraph 2 of the separation agreement of July 26, 1958, it is provided that "she (defendant) does hereby quitclaim and release any and all right, title and interest" in and to the subject property. In addition, defendant agreed "to execute a warranty deed conveying any and all right, title and interest" she owned in the subject property, "said deed to be simultaneously executed with the execution of this contract."

On July 26, 1958, the date of the separation agreement, plaintiff and defendant executed a warranty deed for the subject property to Thomas M. Faw; and thereafter, under date of July 28, 1958, Thomas M. Faw and wife, Virginia S. Faw, conveyed the subject property to plaintiff.

The only reasonable inference is that the deed to Faw and the separation agreement were executed simultaneously in accordance with the express terms of the separation agreement. The terms of these documents disclose their interrelation as parts of a single transaction. Coastal Sales Co. v. Weston, 245 N.C. 621, 625, 97 S.E.2d 267.

It is alleged and admitted that the separation agreement of July 26, 1958, "was duly executed by both parties, with privy examination and acknowledgment of the defendant before Justice of the Peace H. M. Foy." Defendant's brief states "(t)he certificate required by GS 52-12 appears on both separation agreements."

"The title to real property may be as effectually conveyed or transferred by a quitclaim deed as by a warranty deed or any other form of conveyance." 26 C.J.S. Deeds § 118; Peel v. Calais, 224 N.C. 421, 427, 31 S.E.2d 440; Hayes v. Ricard, 245 N.C. 687, 691, 97 S.E.2d 105.

Mindful of the essential parts of a valid deed, Griffin v. Springer, 244 N.C. 95, 92 S.E.2d 682, and cases cited, it is our opinion, and we so hold, that defendant by the terms of paragraph 2 of the separation agreement of July 26, 1958, conveyed to plaintiff all of her right, title and interest in the subject property.

Whether, as contended by defendant, the deed of July 26, 1958, to Faw is void because not executed and acknowledged in accordance with G.S. § 52-12 is not determinative. However, with reference thereto, it should be noted that this deed may not be considered a separate and distinct transaction. Rather, the agreement for the execution of such deed is an integral part of the separation agreement of July 26, 1958, and defendant's obligation to execute such deed was necessarily considered by the justice of the peace before he executed the certificate (required by G.S. § 52-12) attached to said separation agreement of July 26, 1958.

In Fisher v. Fisher, 217 N.C. 70, 6 S.E.2d 812, heard on demurrer to complaint, this Court considered a different factual situation. The separation agreement then considered contained no reference to the specific property in controversy. Nor did it refer to property held by the parties thereto as tenants by the entirety. The separation agreement provided that the wife was to hold "all real estate and personal property which she may now own, or hereafter acquire," free from all rights of the husband, and that the husband was to hold "any real or personal property which he may now own, or hereafter acquire, other than that hereby specifically mentioned," free from any claim on the part of his wife. Moreover, as stated in the opinion of Winborne, J. (later C. J.): "Careful examination fails to reveal any indicia in the deed of separation that the deed to the trustee should be executed as a part of the separation agreement, nor is there in the deed to the trustee any reference to the deed of separation."

Having reached the conclusion that defendant, by said separation agreement of July 26, 1958, whether considered alone or in conjunction with said deed of July 26, 1958, conveyed to plaintiff all her right, title and interest in the subject property, we need not consider defendant's contention that G. S. § 52-12.2, a curative statute, is unconstitutional. Decision on this appeal is not based on G.S. § 52-12.2.

In passing upon plaintiff's motion for judgment on the pleadings, we must accept as true the facts alleged in defendant's further answer and defense. It appears therefrom that Judge Gwyn in an order dated November 30, 1959, granted defendant the possession of the subject property as a place of residence for herself and two children. The facts with reference to the present status of the action in which such order was entered are not disclosed. For present purposes, we must assume there has been no modification of Judge Gwyn's order. Whether such order, if presently in effect, should be modified in the light of subsequent events is properly determinable upon motion in the cause in which it was entered. Suffice to say, until the facts with reference to the present status of said order and of the action in which it was entered are ascertained, no judgment or writ of ejectment should be entered or issued in this cause.

There is error in the portion of the judgment in which it is adjudged that plaintiff is entitled to have defendant ejected from the subject property. Hence, the judgment is modified by striking therefrom the paragraph containing these provisions, to wit, the second (final) paragraph of the judgment proper. As so modified, the judgment of the court below is affirmed.

In the circumstances, it is ordered that each party be and is taxed with onehalf of the costs incident to the appeal.

Modified and affirmed.