Jones v. Lewis , 243 N.C. 259 ( 1955 )

90 S.E.2d 547 (1955) 243 N.C. 259

Mrs. Patsy Fisher JONES and husband, S. D. Jones,
v.
Frank LEWIS and wife, Mrs. Frank Lewis.

No. 596.

Supreme Court of North Carolina.

December 14, 1955.

Peter L. Long, James J. Caldwell, Charlotte, for petitioners.

Falk, Carruthers & Roth, Greensboro, for respondents.

DENNY, 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 insofar as it remains executory. Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann.Cas.1913D, 261; Moore v. Moore, 185 N.C. 332, 117 S.E. 12; State v. Gossett, 203 N.C. 641, 166 S.E. 754; Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768; Campbell v. Campbell, 234 N.C. 188, 66 S.E.2d 672. 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. An exhaustive collection of the cases on this subject may be found in 35 A.L.R.2d Annotation: Reconciliation—What Comprises—Effect, page 707 et seq. through 753. At page 727 thereof it is said: "Regardless of what the rule may be as to a settlement with executory provisions, an executed property settlement is not affected by a mere reconciliation and resumption of cohabitation." Simpson v. Weatherman, 216 Ark. 684, 227 S.W.2d 148, 18 A.L.R. 2d 755; Miller v. West Palm Beach Atlantic Nat. Bank, 142 Fla. 22, 194 So. 230; Hagerty v. Union Guardian Trust Co., 258 Mich. 133, 242 N.W. 211, 85 A.L.R. 417; In re Estate of Shafer, 77 Ohio App. 105, 65 N.E.2d 902.

Schouler, in his treatise on the law of Marriage, Divorce, Separation and Domestic Relations, Sixth Edition, section 1312, page 1561, in discussing the identical question now before this Court, says: "When the contract contains provisions for the wife which might with equal propriety have been made had no separation been contemplated, and others which would have otherwise been idle, the coming together again of the parties and their conduct may be such as to show an intention to avoid the latter and not the former. So where the agreement for separation includes a division of property which might have been made if no separation had taken place the reconciliation does not abrogate this division."

In 17 Am.Jur., Divorce and Separation, section 735, page 552, it is said: "If an agreement between husband and wife providing for their separation goes beyond the terms of a mere separation deed and is in effect a good voluntary settlement by the husband on his wife, a subsequent reconciliation between the parties cannot affect the agreement so far as it constitutes a settlement. Hence, the settlement must stand notwithstanding the reconciliation," citing Hagerty v. Union Guardian Trust Co., supra, and Annotations 40 A.L.R. 1233, and 85 A.L.R. 421.

It 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. Capps v. Massey, 199 N.C. 196, 154 S.E. 52; Willis v. Willis, 203 N.C. 517, 166 S.E. 398; Keel v. Bailey, 224 N.C. 447, 31 S.E.2d 362.

We concur in the ruling of the court below to the effect that the conveyance from the petitioner Mrs. Patsy Fisher Jones was in all respects regular, having been executed in conformity with the laws of this State at the time of the execution thereof, and that she is estopped to deny the title of the respondent Frank Lewis to the two tracts of land in controversy in this proceeding.

The judgment of the court below is

Affirmed.