{ "id": 8621297, "name": "HELEN W. SMITH v. JOHN B. SMITH and MINNIE M. SMITH", "name_abbreviation": "Smith v. Smith", "decision_date": "1958-04-09", "docket_number": "", "first_page": "194", "last_page": "199", "citations": [ { "type": "official", "cite": "248 N.C. 194" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "76 S.E. 86", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "160 N.C. 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270337 ], "opinion_index": 0, "case_paths": [ "/nc/160/0026-01" ] }, { "cite": "24 S.E. 2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632367 ], "opinion_index": 0, "case_paths": [ "/nc/222/0736-01" ] }, { "cite": "66 S.E. 2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619128 ], "opinion_index": 0, "case_paths": [ "/nc/234/0132-01" ] }, { "cite": "73 S.E. 2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626478 ], "opinion_index": 0, "case_paths": [ "/nc/236/0495-01" ] }, { "cite": "76 S.E. 2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598827 ], "opinion_index": 0, "case_paths": [ "/nc/238/0061-01" ] }, { "cite": "70 S.E. 467", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "154 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652185 ], "opinion_index": 0, "case_paths": [ "/nc/154/0278-01" ] }, { "cite": "73 S.E. 814", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "158 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654831 ], "opinion_index": 0, "case_paths": [ "/nc/158/0147-01" ] }, { "cite": "70 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625448 ], "opinion_index": 0, "case_paths": [ "/nc/235/0455-01" ] }, { "cite": "96 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611552 ], "opinion_index": 0, "case_paths": [ "/nc/245/0378-01" ] }, { "cite": "80 S.E. 2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 416", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627141 ], "opinion_index": 0, "case_paths": [ "/nc/239/0416-01" ] }, { "cite": "89 S.E. 2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620870 ], "opinion_index": 0, "case_paths": [ "/nc/243/0060-01" ] } ], "analysis": { "cardinality": 549, "char_count": 12984, "ocr_confidence": 0.498, "pagerank": { "raw": 8.460759763497222e-08, "percentile": 0.48513909498198543 }, "sha256": "719a2ee30a0818465835f2fa2f3c82a2deae04923b2eddb0d98cb61ad20390e1", "simhash": "1:0d3384fac027a6d5", "word_count": 2297 }, "last_updated": "2023-07-14T22:38:24.992419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HELEN W. SMITH v. JOHN B. SMITH and MINNIE M. SMITH." ], "opinions": [ { "text": "Higgins, J.\nThe petitioner initiated this special proceeding for the purpose of having a described parcel of land sold for partition between her and the respondent, John B. Smith, alleged to be tenants in common, \u201csubject to the life estate in the four-room house and lot . . . which life estate belongs to Minnie M. Smith.\u201d\nThe respondents, by answer, denied the tenancy in common and alleged the petitioner had no interest in the land which descended to the respondent, John B. Smith, by inheritance from his father. The respondents alleged that the name of Helen W. Smith was inserted in the deed from Minnie M. Smith by mistake. The respondents admitted, however, that Minnie M. Smith has a life estate in the land. In the further answer and defense, the respondents pleaded other matters not material to a decision of the case.\nThe parties stipulated: \u201cBy deed dated September 15, 1949, Minnie M. Smith, widow, conveyed a portion of the lands originally owned by Benjamin Franklin Smith, being the portion involved in this controversy, to J. B. Smith and wife, Helen W. Smith. ...\u201d It is further stipulated: \u201cSaid deed states a consideration of \u2018$1.00, Love and Affection, Deed of Gift.\u2019 . . . Said deed further states after the names of J. B. Smith and wife, Helen W. Smith, \u2018creating an estate by entirety.\u2019 \u201d\nThe deeds referred to in the stipulations are not in the record and there is nothing to indicate they were introduced in evidence. The only evidence actually introduced was the testimony of the petitioner that she and the respondent, J. B. Smith, were married on August 6, 1949, and that she thereafter turned over to her husband certain sums of money which were used in drilling a well and making repairs on the house. \u201cJohn B. Smith did not ever tell me my name had got on that deed by mistake. It was my understanding that was the way the deed was supposed to be made, otherwise I wouldn\u2019t have married him, and that is the reason I put my money in the property.\u201d\nIt may be noted the rights of the petitioner to an accounting for improvements put upon land under the belief she held title is not an issue raised by the pleadings in this case. The petitioner\u2019s evidence does not bear on the issue whether the- petitioner- and John B. Smith are tenants in common. It may be noted also that if the petitioner\u2019s contention is correct that the deed created an estate by entirety, a divorce would be necessary to convert such estate into a tenancy in common. There is no evidence and no stipulation of a divorce. The stipulation does not go beyond the fact that she remarried. Therefore, the court\u2019s judgment, which is excepted to, must stand or fall on the stipulations.\nThe stipulations constitute an agreed statement of facts in the cause. Decision must be based on the facts agreed. The court is not permitted to infer other, or additional facts. Sparrow v. Casualty Co., 243 N.C. 60, 89 S.E. 2d 800; Auto Co. v. Ins. Co., 239 N.C. 416, 80 S.E. 2d 35.\nThe court decided (1) the land involved was inherited by John B. Smith from his father; (2) the deed from Minnie M. Smith to J. B. Smith and wife, Helen W. Smith, which states it creates an estate by entirety does not do so; and (3) the 'proceeding is prematurely instituted as ,to that part of the land in which Minnie M. Smith holds a life estate.\nThe stipulations are sufficient to show that in 1906 Benjamin Franklin Smith acquired a tract of land and .at his death' he left a widow, Minnie M. Smith, and two sons, Frank Rhyne Smith and the respondent, John B. Smith, -as his heirs at law. Frank Rhyne Smith conveyed all his 'interest to his mother, Minnie M. Smith. The result was she and John B. Smith held the Benjamin Franklin Smith lands as tenants in common, subject to her dower interest. On September 15, 1949, John B. Smith and wife, Helen, by deed, conveyed a .portion of the lands to Minnie M. Smith. The deed recites a consideration of \u201c$1.00, Love and Affection, Deed of Gift.\u201d The stipulation contain\u00ae no description of the land, but refers to the registry where the deed is recorded. On the same day .and for the same stated consideration, Minnie M. Smith conveyed to John B. Smith and wife, Helen W. Smith, the lands in controversy. \u201cS'aid deed further 'states after the names of John B. Smith and wife, Helen W. Smith 'creating an estate by entirety.\u2019 \u201d It must be noted the stipulation isays Minnie M. Smith conveyed the land in controversy to John B. Smith and wife, Helen W. Smith. The court held John B. Smith inherited it from his father. The court held, also, that Minnie\u2019s deed did not convey an estate by entirety to Helen. What estate, if any, it did convey is not decided. The crucial question is, did it create a tenancy in common? Such a tenancy is the foundation upon which partition is based. G.S. 46-1 .and 46-3; Lockleair v. Martin, 245 N.C. 378, 96 S.E. 2d 24; Murphy v. Smith, 235 N.C. 455, 70 S.E. 2d 697; Gregory v. Pinnix, 158 N.C. 147, 73 S.E. 814.\n. We apprehend tire difficulty in the case arose by reason of the attempt on the part of the court to treat the deeds of September 15, 1949, as a voluntary partition of the property held by Minnie M. Smith and John B. Smith as tenants in common. What, if .anything, the deeds show beyond the stipulated facts is unknown. Neither \"the trial court nor this is permitted to guess. The facts stipulated are insufficient to show the deeds were intended by the parties to be -a voluntary partition of their lands. It seems that in order to show the deeds were executed pursuant to a scheme or plan to divide lands held by tenancy in common, there must be evidence to that effect .on the face of the deeds, or the intent must .otherwise appear. Morton v. Lumber Co., 154 N.C. 278, 70 S.E. 467.\nIf it .should be 'determined the deeds are partition deeds, the petitioner would derive nio title. \u201cAccordingly, a deed made by one tenant-in common to a cotenant and the latter\u2019\u00ae spouse in partitioning inherited land or land held as a tenancy in common, does not create \u25a0an esfebe by the entirety or enlarge 'the marital rights of the spouse as previously fixed by law.\u201d Elledge v. Welch, 238 N.C. 61, 76 S.E. 2d 340; Sutton v. Sutton, 236 N.C. 495, 73 S.E. 2d 157. Consequently, if the deed to John B. Smith and Helen W. Smith wiais a p'artition deed, it makes no difference whether the name of Helen W. Smith was inserted by design or by mistake. In neither event did she acquire any title.\nThe trial court erroneously held the partition proceeding was prematurely brought by reason of the 'outstanding life estate of Minnie M. Smith in a part of the land. G.S. 46-23 provides: \u201cThe existence of a life estate -in any land shall not be a bar to a \u00a9ale for partition of the remainder or reversion thereof, . . .\u201d Bunting v. Cobb, 234 N.C. 132, 66 S.E. 2d 661; Moore v. Baker, 222 N.C. 736, 24 S.E. 2d 749; Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86.\nThe petitioner\u2019s exception to judgment is well taken. The facts before the court were insufficient to sustain the judgment for the reasons herein pointed out. The cause is remanded to the Superior Court of Gaston County for further bearing.\nRemanded.", "type": "majority", "author": "Higgins, J." } ], "attorneys": [ "Max L. Childers for petitioner, appellant.", "Ernest B. Warren, Julius T. Sanders, for defendants, appellees." ], "corrections": "", "head_matter": "HELEN W. SMITH v. JOHN B. SMITH and MINNIE M. SMITH.\n(Filed 9 April, 1958)\n1.Controversy' without Action. \u00a7 2\u2014\nWhere..the panties stipulate the facts upon which the court should . ..-render judgment, the Stipulated facts constitute the sole basis for decision, and the count is not permitted to infer other or additional facts.\n2. Tenants in Common \u00a7 10\u2014\nWhere one of two tenants in common conveys his interest to -a third party, such -third party becomes a tenant in common with the other.\n3. Partition \u00a7 la\u2014\nThe existence of tenancy in common is prerequisite to .partition, G.S. 46-1, G.S. 46-3.\n4. Partitions \u00a7 7\u2014\nIn order for reciprocal deeds executed by each tenant in common to the other to constitute a voluntary partition of the lands, intent to partition must appear either on the face -of -the deeds -or otherwise.\n5. Same: Husband and Wife \u00a7 14\u2014\nHeeds executed by ten-ants in common for the purpose of effecting a voluntary partition, convey no title, and therefore, if a deed from one tenant to the other is executed .pursuant to a plan for .partition, the \u25a0wife of the grantee tenant would take no. interest by virtue of the deed, \u25a0even though she is also named as grantee and even though the deed states \u25a0that it creates an estate by the entirety in the grantees.\n6. Partition \u00a7 lc(3) \u2014\niThe existence of a life estate, even though it be in favor of one- of the tenants in common, does not preclude partition of the remainder among the tenants in common. G.S. 46-23.\n7. Appeal and Error \u00a7 49\u2014\nWhere the facts before the court are insufficient to sustain the judgment, the cause must be remanded.\nAppeal by plaintiff from Crissman, J., October 1957 Term, GastoN Superior Count.\nSpecial proceeding before the clerk for sale -for partition of ia described tract of land which the petitioner alleged'\u00a9he and the respondent, John B. Smith, held as tenants in common, subject to the life estate of Minnie M. Smith \u201cin the four-room house and lot locate^ on said property.\u201d The respondent, J.oihn B. Smith, by 'answer, admitted that Minnie M. Smith held a life estate in the described land's but denied the petitioner owned \u00a1any interest .therein. By way of funtfier defense, John B. Smith alleged the tract of land involved came to' him by inheritance from his father, and that the petitioner\u2019s name was inserted in his deed by mistake.\nAfter determining that issues of fact were raised by the pleadings, the clerk transferred the proceeding to the civil issue docket for trial in term.\nThe parties stipulated:\n\u201c1. It is stipulated and agreed that Benjamin Franklin Smith \u25a0purchased the lands involved in this matter from J. Sidney Smith, et al, by deed dated July 21, 1906, and recorded in Book 83, page 193, in the office of the Register of Deeds for Gaston County, North Carolina.\n\u201c2. It is stipulated and agreed that Benjamin Franklin Smith left as his 'heirs his widow, Minnie M. Smith, and two sons, Frank Rhyne Smith and John B. Smith.\n\u201c3. It is further stipulated and agreed that by deed 'dated April 23, 1933, Frank Rhyne Smith and wife, Gathryn K. Smith, conveyed all their interest in the Estate of Benjamin Franklin Smith to Minnie M. Smith.\n\u201c4. It is stipulated and agreed that by deed dated September 15, 1949, John B. Smith and wife, Helen W. Smith, conveyed a portion of the lands originally owned from Benjamin Franklin Smith to Minnie M. Smith by deed recorded in Book 546, page 467, in the aforementioned Registry. Said deed beans no revenue stamps \u25a0and recites a consideration of \u2018$1.00, Love and Affection, Deed of Gift.\u2019\n\u201c5. It is further stipulated and agreed that by deed dated September 15, 1949, Minnie M. Smith, widow, conveyed a portion of the lands originally owned by Benjamin Franklin Smith, being the portion involved in this controversy, to J. B. Smith and wife, Helen W. Smith, by deed recorded in Book 546, Page 468, in the aforementioned Registry. Said deed states a consideration of \u2018$1.00, Love and Affection, Deed of Gift,\u2019 and bears no revenue stamps. Said deed further states after the names of J. B. Smith and wife, Helen W. Smith, \u2018creating an estate by entirety.\u2019 Said deed further states that the grantor, Minnie M. Smith, reserved a life estate in the four-room house, and the lot upon which it is situated.\n\u201c6. It is stipulated and agreed that on the date that the petition in this matter was filed, the petitioner\u2019s name was Helen W. Smith, but that on the date the petition was served, the said Helen W. Smith had remarried, and that her married name is Helen W. Schelper.\u201d\nPetitioner testified that she and the respondent, John B. Smith, were married on August 6, 1949. Her further testimony related to matters not pertinent to the question determinative of this appeal.\nThe parties waived a jury trial and submitted the controversy to the judge for determination. The court entered the following judgment: \u201cThe Court finds the following facts:\n\u201cThat the land involved in this controversy is land which was inherited by J. B. Smith from his father, Benjamin Franklin Smith; that said deed from Minnie Smith to J. B. Smith and wife, Helen W. Smith, which states that it creates an estate by the entirety does not do so; that a portion of the land involved in said controversy is subject to the life estate of Minnie M. Smith, who is still living, and, as to that portion of said lands, said suit was brought prematurely;\n\u201cNow, therefore, it is ORDERED, ADJUDGED AND DECREED, based upon the foregoing findings of fact, that said John B. Smith is the sole owner of the lands involved in this controversy, subject ,to the life estate of Minnie M. Smith, as set out in said deed and that the plaintiff be taxed with the cost.\u201d\nFrom the judgment, the petitioner appealed.\nMax L. Childers for petitioner, appellant.\nErnest B. Warren, Julius T. Sanders, for defendants, appellees." }, "file_name": "0194-01", "first_page_order": 236, "last_page_order": 241 }