#### CHARLES EDWARD HUTCHINS, JR. v. CAROLYN GENEVIEVE DAVIS HUTCHINS.

(Filed 11 December 1963.)

1. Deeds § IS—

A quitclaim deed transfers tbe grantor’s title ias effectively as any other form of conveyance.

3. Husband and Wife § 13—

Separation agreements ordinarily are revoked by tbe subsequent renewal of marital relations by tbe parties, but a duly executed conveyance of property in accordance with tbe settlement is mot revoked.

3. Same: Husband and Wife §§ 11, 17—

Tbe separation agreement between tbe parties, duly acknowledged as required by G.S. 52-12, provided that the wife did thereby quitclaim any and all night, title and interest in particularly described property held by the entireties, and she therein agreed to execute a warranty deed conveying such interest, but 'the deed wias not acknowledged in conformity with G.iS. 52-12. The parties thereafter resumed the marital relationship. Reid: *629The deed of separation constituted a conveyance (to the husband all of the wife’s right, title, and interest in such property, and the resumption of the marital (relationship did not affect the executed conveyance.

4. Pleadings § 30—

In passing upon plaintiff’s motion for judgment on the pleadings, the facts alleged in defendant’s pleadings must be accepted as true.

5. Assistance, Writ of; Courts § 9; Judgments § 20—

Even though judgment that 'the husband is the owner of the property in question is proper upon the facts admitted in the pleadings, the judgment may not provide that the wife be ejected from the premises so long as a prior order in an independent action giving the wife possession of the property remains in effect, since even if modification of such prior order be proper, it may be done only by motion in the cause in which it was entered.

Appeal by defendant from Walker, Special Judge, April 1963 Session Oif SURRY.

Civil action to establish plaintiff’s ownierisihip and right to possession of real property in wbicih the court, granting plaintiff’s motion therefor, entered judgment on the pleadings.

There «re thirteen numbered paragraphs (exclusive of the prayer for relief) in the (Complaint. Answering, 'defendant admitted categorically the allegations of paragraphs Nos. 1-9, inclusive, and of -paragraphs Nos. 11 and 13.

The facts so admitted are summarized, except when quoted, as follows:

Formerly, plaintiff -and defendant were husband and wife. On November 6, 1961, in an (action in the Superior Court of Surry County, North Carolina, (defendant obtained an absolute divorce on the ground of two years’ separation.

On or 'about July 26, 1958, plaintiff and defendant, then husband and wife, separated; and on that date they entered into a separation ■agreement “which w-as duly executed iby both parties, with privy examination and -acknowledgment of the defendant before Justice of the Peace H. M. Foy.”

Paragraph 2 of ©aid separation agreement of July 26, 1958, provides:

“It is further understood and agreed that the husband will pay to the wife in a lump sum 'the amount of Two Thousand and Five Hundred ($2,500.00) Dollars simultaneously -with -the execution of this agreement and in consideration of the payment of the sum of $2,500.00 by the husband to'the wife, the wife does hereby release, -discharge and quitclaim any right to support, maintenance, alimony, alimony pen- *630 dente lite, and any and aid fights of 'action, muses of action, claims or demands which she might or .could hereafter assert .against the said llnuisband by virtue of the marital relationship ¡presently existing between the said husband and wife, the parties herein. In addition to- the ■foregoing and in consideration of the payment of the aforementioned ©um by the husband to. the wife, the wife does hereby covenant, contract and agree to execute a warranty deed conveying any and all right, title and interest which she now owns in and to the home heretofore occupied by the parties as husband and wife, said deed to be simultaneously executed with the execution of this contract, and she does hereby quitclaim and release any and all right, title and interest in and to that certain dwelling house heretofore occupied by the parties, situated on the south side of Highway #601, in White Plains, as described in Deed Book 181, page 421 and 440, Surry County Registry, to which reference is hereby made, and said deed is hereby incorporated by reference.!’ (Our italics).

On July 26, 1958, plaintiff and defendant executed a warranty deed conveying to Thomas M. Faw the property in White Plains described in paragraph 2 of the separation 'agreement of July 26, 1958, referred to 'hereafter as the subject property; and on July 28, 1958, Thomas M. Eaiw and wife, Virginia S. Faw, conveyed the subject property to plaintiff.

On some date between July 28, 1958, and August 27, 1958, plaintiff ■and defendant resumed marital relations. They separated again on August 27,1958, at which .time .they “duly executed and acknowledged” another separation agreement. Paragraph 2 of the separation agreement of August 27, 1958, in part, provides: “In addition to the foregoing and in consideration of the payment of the .aforementioned sum by the husband to. the wife, the wife does hereby release, quitclaim, and discharge any and all right, title aand interest in and to any of the real property now owned by the .husband or heretofore owned by the parties as tenants by the entireties 'and does specifically release her inchoate right of dower in and to the real property owned by the husband, party of the first piart herein."

On August 27, 1958, simultaneous with the execution of the separation agreement of that date, plaintiff and defendant again conveyed the 'Subject property to Thomas M. Faw; and on the same date Thomas M. Faw and wife, Virginia S. Paw, conveyed -the subject property to plaintiff. '

In November, 1958, plaintiff and defendant again resumed marital relations. They separated again in 1959.

*631The said separation agreements and deeds were recorded in the office of the Register of Deeds of Surry County.

In the deeds to Faw, the property is described by metes and bounds and also by reference to the deeds by which it was conveyed to plaintiff and defendant, to wit, the deeds recorded in Book 181, Page 421, and in Book 181, Page 440, said Registry.

There was no private examination of the wife or certificate in accordance with G.S. 52-12 in connection with the execution and acknowledgment of the deeds to Faw.

Plaintiff’s controverted allegations are summarized below.

Plaintiff -alleged he was ousted from -the subject property in 1959; that defendant ihais hiad possession thereof b-u-t has paid no rent; and that a- fair rental value is $125.00 per month. Answering, defendant admitted she had 'had possession; that she had paid no- rent; and that $125.00 par month is a fair rental value. She alleged plaintiff wais not unlawfully ousted but that defendant was given possession oif the subject property in November, 1959, iby an order -of the Superior Court of Surry County.

Plaintiff’s allegations that he is the owner of the subject property, subject to outstanding deeds of trust thereon, and is entitled to possession thereof, and that defendant has no right, title or interest therein or to possession- thereof, are denied by defendant.

Defendant, for a further lanswer and defense, alleged in sub-stance the following: Two children, -then 13 and 18 years of age, were bom of the marriage -of -pl-ainitiff and defendant. At the November Term, 1959, of the Superior Court of Surry County, his Honor, Allen H. Gwyn, the Presiding J-udge, -upon motion of the present defendant, entered an order, after a hearing for relief pendente lite, in which the present defendant was granted possession “of the honxeplace,” to wit, the subject property, as -a place of residence for -the present defendant 'and -her minor children. There has been no final judgment in the cause in which s-aid order was entered. The separation -agreements w-ere nullified by the resumption (s) of marital relations. Plaintiff -and -defendant, since ¡said absolute divorce, have been and are owners of the subj ect property a-s tenants in common. In any event, -defendant is -entitled to possession under Judge Gwyn’s order unless and until it is modified.

Plaintiff did not reply to the allegations -o-f defendant’s s-aid further answer and defense.

Plaintiff moved for judgment on the pleadings on the assarted ground -that “the -properly pleaded allegations of the answer, even if taken to be true for the purpose of this motion, -do not constitute a valid and legal defense to the claim and demands -set forth in the -com*632plaint or to any part .thereof.” After a hearing on plaintiffs said motion Judge Walker entered judgment which, after recitals, provides:

“NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the plaintiff is owner of the previously described realty herein, to the exclusion of the defendant; .and that the defendant is taxed with the costs of 'this -action.

“IT IS FURTHER ORDERED that no ej ectment .should issue in this caise against the defendant until the time for .appealing this judgment has expired, or, should the judgment be .appealed, until this case has been decided upon appeal. Should said appeal not be perfected, the plaintiff is entitled to- have the defendant ejected from the premises.”

Defendant excepted, appealed .and assigns as error “the granting of plaintiffs motion for judgment on the pleadings ...”

Craige, Brawley, Lucas & Horton for 'plaintiff appellee.

Otis M. Oliver and Foy Clark for defendant appellant.

Bobbitt, J.

“It is weld 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 pmpo.se in so- far as if 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, p. 262, 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 ih-er right, title and -interest in- the subject property. If so, under Jones v. Lewis, supra, -the subsequent reconciliation (is) and -resumption (is) of marital relations did not revoke or invalidate such oonveyan.ee.

*633In paragraph 2 <otf .the separation 'agreement of July 26, 1958, it is provided that “she (defendant) does hereby quitclaim 'and release any land rail right, title and interest” iin rand 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. Fatw; and 'thereafter, under date of July 28, 1958, Thomas M. Faw and wife, Virginia S. Fatw, 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 tennis of these documents disclose their interrelation as parts of a ‘Single transaction. 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 par,ties, 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 G.S. 52-12 appears on 'both separation agreements.”

“The title to- ¡real property may be as effectually conveyed or transferred by a quitclaim dead -as by a warranty deed or any other form off 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 -es'semtiiail 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 Faiw 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 wias¡ 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.

*634In Fisher v. Fisher, 217 N.C. 70, 6 S.E. 2d 812, beard on demurrer to complaint, tihiiis Count '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 iby 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 Winiborme, J. (later C.J.): “Careful examination fails to reveal 'any indicia in the dead of separation that the deed to the trustee should be executed as a pant of the separation agreement, nor is there in, the deed to the trustee any reference to the deed of separation.”

Having reached the conclusion thait 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. Tire 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 Gwynis order. Whether such order, if presently in effect, should) be modified in the light of subsequent events is properly determinable upon morion in the cause in which it was entered. Suffice to say, until the facts with reference to' the present status of ©aid order’ land of the action in which it was entered are ascertained, no judgment or writ of 'ejectment should foe 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 tire 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 'beloiw is affirmed.

*635In -tile circumstances, it is ordered that eaob party 'be and is taxed with one-haJif of the 'cost© incident to the appeal.

Modified 'and 'affirmed.