Boone v. Brown

181 S.E.2d 157 (1971) 11 N.C. App. 355

Edward Lee BOONE, Individually and as Executor of the Estate of Frances D. Boone, Deceased, and wife, Josephine Bright Boone
v.
Shirley Lovick BROWN and husband, Robert Brown, and Theodore Lovick and wife, June S. Lovick.

No. 718SC65.

Court of Appeals of North Carolina.

May 26, 1971.

Wallace, Langley & Barwick by F. E. Wallace, Jr., Kinston, for petitioner appellant.

White, Allen, Hooten & Hines by John R. Hooten, Kinston, for respondent appellees.

PARKER, Judge.

A deed by which a wife undertakes to convey an interest in her real estate to her husband during their coverture is a contract between them to which the provisions of G.S. § 52-6 apply. Butler v. Butler, 169 N.C. 584, 86 S.E. 507. Our Supreme Court has uniformly held that unless the requirements of that statute are complied with, such a deed is void. Combs v. Combs, 273 N.C. 462, 160 S.E.2d 308; Walston v. Atlantic Christian College, 258 N.C. 130, 128 S.E.2d 134; Brinson v. Kirby, 251 N.C. 73, 110 S.E.2d 482; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598; Ingram v. Easley, 227 N.C. 442, 42 S.E.2d 624; Fisher v. Fisher, 217 N.C. 70, 6 S.E.2d 812; Caldwell v. Blount, 193 N.C. 560, 137 S.E. 578; Best v. Utley, 189 N.C. 356, 127 S.E. 337; Singleton v. Cherry, 168 N.C. 402, 84 S.E. 698; Sims v. Ray, 96 N.C. 87, 2 S.E. 443.

In the acknowledgment of the deed under which the husband petitioner claims in the present case, the statute was not complied with. No private examination of the wife was made as required by G.S. § 52-6(a); the certifying officer did not incorporate in her certificate a statement of her conclusions and findings of fact as to whether or not the deed was unreasonable or injurious to the wife as required by G.S. § 52-6(b); and the certifying official who took the wife's acknowledgment was a notary public and as such was not one of the officials authorized by G.S. § 52-6(c) to make the required certificate. (In this last connection, see also G.S. § 10-4(a)(1), which provides that a notary public of this State may take and certify the acknowledgment of any instrument "except a contract between a husband and wife governed by the provisions of G.S. 52-6.") While G.S. § 52-6 has been several times amended, all three of the above requirements were in effect in 1956 at the time the deed here in question was executed. Since the statute was not complied with, the deed was void.

G.S. § 52-8 is not applicable to this case. That statute purports to validate contracts between husband and wife coming within the provisions of G.S. § 52-6 executed between 1 January 1930 and 20 June 1963 which do not comply with the requirement of a private examination of the wife. However, by its terms that statute applies only to contracts which are "in all other respects regular." As above noted, in this case not only was the private examination of the wife not taken, but there was no finding by the certifying officer of the officer's conclusions and findings of fact as to whether or not the deed was unreasonable or injurious to the wife as required by G.S. § 52-6(b) and the certifying officer was not one of those authorized by G.S. § 52-6(c) to make the required certificate. Therefore, it is not necessary for us to consider in the present case whether G.S. § 52-8, if applicable, would be constitutional. (In this connection, see Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849; and Godwin v. Wachovia Bank and Trust Co., 259 N.C. 520, 131 S.E.2d 456.)

The judgment appealed from is

Affirmed.

MALLARD, C. J., and VAUGHN, J., concur.