Council v. Pitt, 158 S.E.2d 34, 272 N.C. 222 (N.C., 1967)
158 S.E.2d 34
272 N.C. 222
Henry COUNCIL; Hardy Council and wife, Elsie Council; Molly
Andrews and husband, John Robert Andrews; Loretta
Robertson and Marilyn Council
Inez PITT, Executrix of the Estate of Millie Council et al.
Supreme Court of North Carolina.
Dec. 13, 1967.
Edgar J. Gurganus, Williamston, for petitioner appellants.
Clifton W. Everett, Bethel, for respondent appellees.
Petitioners, the heirs of Min Council, contend that the commissioners’ deed to Millie and Min Council did not create an estate by the entireties but vested the title in Millie Council alone, and that her subsequent deed to her husband conveyed to him a one-half undivided interest, which they acquired by inheritance from him. It is the contention of the respondents, the executrix and devisees of Millie Council, that the commissioners’ deed conveyed an estate by the entireties and that, in any event those who take through Min Council may not contend otherwise. They argue further that, as a tenant by the entirety, Millie Council could not convey to the other tenant a one-half undivided interest in the land.
It is unnecessary to discuss the effect of the variance between the order confirming the sale to Millie Council and the conveyance to Millie and Min Council. Nor is it necessary to decide whether the commissioners’ deed created an estate by the entireties in Millie and Min Council or conveyed a fee simple to Millie. In either event, the decision here must be the same. If the commissioners’ deed did not create an estate by the entireties, respondents correctly concede that the deed of 17 December 1937 from Millie to her husband conveyed to him a one-half undivided interest in the property and that petitioners are entitled to partition. If the commissioners’ deed did convey an estate by the entireties to the grantees, petitioners are still entitled to partition because respondents, who claim under Millie Council, are estopped by her deed to claim that she acquired the whole estate by survivorship when her husband predeceased her.
One of the incidents of an estate by the entireties is that neither the husband nor the wife can defeat the other’s right of survivorship in the land by a conveyance or encumbrance to a third party. Capps v. Massey, 199 N.C. 196, 154 S.E. 52; Davis v. Bass, 188 N.C. 200, 124 S.E. 566; 2 Strong, N.C. Index, Husband and Wife §§ 15, 16 (1959). If, however, the conveying spouse survives the other, the grantee will acquire title by estoppel. Harrell v. Powell, 251 N.C. 636, 112 S.E.2d 81; Capps v. Massey, supra; Hood v. Mercer, 150 N.C. 699, 64 S.E. 897. It is equally ‘well settled in this State that a conveyance from one spouse to the other of an interest in an estate by the entireties is valid as an estoppel when the requirements of the [272 N.C. 226] law are complied with in the execution thereof.’ Jones v. Lewis, 243 N.C. 259, 262, 90 S.E.2d 547, 550; accord, Hutchins v. Hutchins, 260 N.C. 628, 133 S.E.2d 459; Harrell v. Powell, supra; Willis v. Willis, 203 N.C. 517, 166 S.E. 398. Not only the conveying spouse but also ‘those claiming under him as his heirs at law, as well as others standing in privity to him, are estopped by his deed to claim the land.’ Keel v. Bailey, 224 N.C. 447, 449, 31 S.E.2d 362, 363.
The deed of 17 December 1937 from Millie to Min Council was acknowledged in the manner required by the law then applicable to contracts between husband and wife. N.C. Code of 1935, § 2515. (See also §§ 1000, 3175, 3293.) That deed clearly manifested the intention of the parties to hold the land as tenants in common so that the heirs of each might inherit one-half of the property. Whether the deed be regarded as a direct conveyance of a one-half undivided interest to Min Council or be held to have estopped Millie Council, the survivor, from claiming title to the whole by survivorship, the result is the same: Petitioners, as owners of a one-half undivided interest in the lands described in the petition, are entitled to partition in accordance with their prayer for relief in the amended petition. See Annot., Entireties–Termination by Deed, 8 A.L.R.2d 634, 639 (1941).
It is noted that legislation has eliminated the question whether such a deed operates as a conveyance or an estoppel. G.S. § 39–13.3(c), enacted as N.C. Sess.Laws, 1957, ch. 598, § 1, now provides:
‘A conveyance from a husband or a wife to the other spouse of real property, or any interest therein, held by such husband and wife as tenants by the entirety dissolves such tenancy in the property or interest conveyed and vests such property or interest formerly held by the entirety in the grantee.’
The judgment of the court below is reversed, and this proceeding is remanded for the entry of a decree in accordance with this opinion.