Davis v. Vaughn

91 S.E.2d 165, 243 N.C. 486, 1956 N.C. LEXIS 368

• Court: Supreme Court of North Carolina
• Decided: February 3, 1956
• Docket: 602
• Status: Published

Opinion

WiNBORNE, J.

The appellants present for decision numerous assignments of error based upon grouped exceptions pertaining to kindred subjects. The Court so treats such of them as seem to merit particular expression.

Assignments of error Numbers 1, 2 and 3 are based upon exceptions of like numbers to the action of the trial judge in overruling objection to question asked certain witnesses as to the mental condition and capacity of Eldora Hiatt Vaughn.

These exceptions are untenable for two reasons: (1) The issue as to mental capacity was withdrawn, and the matter to which objection is made became immaterial. Hence if there were error, it was harmless. (2) Even though as held in the case of In re Lomax, 224 N.C. 459, 31 S.E. 2d 369, a witness should not be permitted to answer questions as to whether the person, whose mental capacity is the subject of inquiry, had sufficient mental capacity to make a will or execute a deed, yet exceptions to the overruling of objection to questions in that respect cannot be sustained, because, as stated by Parker, J., writing for the Court in Spears v. Randolph, 241 N.C. 659, 86 S.E. 2d 263, “It appears that testimony of like import was thereafter admitted without objection,” citing cases. See also Shelton v. R. R., 193 N.C. 670, 139 S.E. 232, and cases cited. Queen v. DeHart, 209 N.C. 414, 184 S.E. 7; Owens v. Lumber Co., 212 N.C. 133, 193 S.E. 219; S. v. Hudson, 218 N.C. 219, 10 S.E. 2d 730; Edwards v. Junior Order, 220 N.C. 41, 16 S.E. 2d 466; S. v. Williams, 220 N.C. 445, 17 S.E. 2d 769; S. v. Matheson, 225 N.C. 109, 33 S.E. 2d 590.

Assignments of error Numbers 4 and 6 are based upon exceptions of like numbers to rulings of the trial court in denying motions of appealing defendants, aptly made, for judgment as of nonsuit. In this connection, this Court has uniformly held that a deed of a wife, conveying land to her husband, is void, unless the examining or certifying officer, taking the acknowledgment of the wife to her execution of the deed, incorporate in his certificate a statement of his conclusions and findings of fact as to whether or not the deed'is “unreasonable or inju rious to her” as required by the provisions of G.S. 52-12, formerly C.S. 2515. Fisher v. Fisher, 217 N.C. 70, 6 S.E. 2d 812, and cases there cited. See also Fisher v. Fisher, S. C., 218 N.C. 42, 9 S.E. 2d 493; Ingram v. Easley, 227 N.C. 442, 42 S.E. 2d 624; McCullen v. Durham, 229 N.C. 418, 50 S.E. 2d 511; Perry v. Stancil, 237 N.C. 442, 75 S.E. 2d 512; Honeycutt v. Bank, 242 N.C. 734, 89 S.E. 2d 598.

Indeed, as stated in Ingram v. Easley, supra, “A married woman cannot convey her real property to her husband directly or by any form of indirection without complying with the provisions of G.S. 52-12, Any manner of conveyance, testamentary devises excepted, otherwise than as therein provided, is void.”

Moreover, in order to create an estate by the entirety the husband and wife must be jointly entitled, as well as jointly named in the deed. And so if the wife alone be entitled to a conveyance, and it is made to her and her husband jointly, the latter will not be allowed to retain the whole by survivorship. Ingram v. Easley, supra, citing Sprinkle v. Spainhour, 149 N.C. 223, 62 S.E. 910; Speas v. Woodhouse, 162 N.C. 66, 77 S.E. 1000.

To like effect, among numerous other cases, are these: Bryant v. Shields, 220 N.C. 628, 18 S.E. 2d 157; Wood v. Wilder, 222 N.C. 622, 24 S.E. 2d 474; Duckett v. Lyda, 223 N.C. 356, 26 S.E. 2d 918. See also Wilson v. Ervin, 227 N.C. 396, 42 S.E. 2d 468.

In the light of these principles, applied to case in hand, the evidence offered upon trial is sufficient to take the case to the jury, and to support the verdict rendered. Admittedly Tract Number One became the sole property of Eldora Pliatt, as the survivor in an estate by entireties; and the case on appeal shows that the second tract was conveyed to her individually as Eldora Hiatt Vaughn, by deed in form sufficient to convey, a fee simple title, with full covenants of seizin, right to convey, freedom from encumbrances and general warranty. Such was the state of the title at the time Eldora Hiatt Vaughn and her husband, W. S. Vaughn, executed the two deeds conveying the two tracts to his daughter and her husband (T. W. Garner and wife, Susie V. Garner), who simultaneously conveyed both tracts to Eldora Hiatt Vaughn and her husband, W. S. Vaughn — that is, in form to vest an estate by the entirety.

Plaintiff alleges that this was an attempt to do indirectly that which could not be done directly. The simultaneousness of the transaction, coupled with the averments of the answers offered in evidence, manifests an intention by the means employed to vest in the husband and the wife an estate by the entireties. The case of McCullen v. Durham, supra, relied upon by appellant is distinguishable in factual situation. Therefore, since the certificate of acknowledgment attached to the deeds from Eldora Hiatt Vaughn and W. S< Vaughn, her husband, as aforesaid, failed to comply with the provisions of G.S. 52-12, the deeds were void, and title remained in her. Hence the motions of defendants for judgment as of nonsuit were properly overruled.

Assignment of error No. 5 is based upon exception No. 5 taken to the action of the trial court in sustaining demurrers ore tenus to two further defenses set up by defendants W. S. Vaughn and wife, and four further defenses set up by H. N. Williard, Trustee, and High Point Savings and Trust Company. While the record shows that plaintiff demurred to each further defense and upon separate grounds, and that the court sustained the demurrers ore tenus to each of the defenses, the entry of these defendants is that “as to the sustaining of the demurrers ore tenus, the defendants (naming them) object and except. Exception No. 5.” Moreover, the assignment of error based on this exception is described as “the action of the court in sustaining the plaintiff’s demurrer ore tenus to the further answer and defense of defendants.” Such exception, and the assignment based thereon are not specific, and fail to meet the requirements of Rule 19 (3) of the Rules of Practice in the Supreme Court, 221 N.C. 544, at 554. And even if the exception and assignment conformed to the rule, appellants fail to show error in any respect as to the ruling of the court.

Assignments of error 13 and 14 are based upon exceptions of like number to peremptory instructions given by the jury with respect to the issues submitted.

While ordinarily a verdict may not be directed in favor of the party having the burden of proof, when only one inference can be drawn from the facts admitted, the court may draw the inference and peremptorily instruct the jury. See McIntosh, North Carolina P. k P., 632. La Vecchia v. Land Bank, 218 N.C. 35, 9 S.E. 2d 489; Finance Co. v. O’Daniel, 237 N.C. 286, 74 S.E. 2d 717.

In the present case the record of the deeds involved, the simultane-ousness of the transaction and the admissions of defendants in their pleadings point unerringly to the single purpose to do indirectly what the statute G.S. 52-12 forbids to be done directly, that is, vest the separate real property of the wife in the husband and the wife as an estate by the entireties without the certificate of the officer, who took the acknowledgment of the wife, that the deed was not unreasonable nor injurious to her. Therefore, the instruction as given was without error.

The record and case on appeal show other assignments of error based upon exceptions (1) to refusal of the trial court to submit other issues tendered by defendants, (2) to give instructions specifically requested by defendants, and (3) to portions of the charge as given. However, upon consideration of them prejudicial error is not made to appear.

Hence for reasons stated, in the judgment from which appeal is taken, we find

No error.