Kirstein v. Kirstein

306 S.E.2d 552 (1983)

Lucille Rhoton KIRSTEIN v. Dewey Samson KIRSTEIN, Jr.

No. 8228DC1081.

Court of Appeals of North Carolina.

September 20, 1983.

Gudger, Reynolds, Ganly, Stewart and Christy by Jack W. Stewart, Asheville, for plaintiff-appellee.

Van Winkle, Buck, Wall, Starnes & Davis by Marla Tugwell, Asheville, for defendant-appellant.

*553 VAUGHN, Chief Judge.

It is an accepted law in North Carolina that courts of one state cannot determine title to real property located in another state. Lea v. Dudley, 20 N.C.App. 702, 202 S.E.2d 799 (1974); Noble v. Pittman, 241 N.C. 601, 86 S.E.2d 89 (1955); McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27 (1948). The Kentucky court had no power to determine title to the realty in dispute, which was located in North Carolina.

Plaintiff does not attack the validity of the Kentucky divorce decree. Even if the Kentucky court had jurisdiction over the parties, it does not follow as a corollary that it had jurisdiction over the res. See In Re Biggers, 228 N.C. 743, 47 S.E.2d 32 (1948).

The Full Faith and Credit Clause of the United States Constitution, Article IV, § 1 has no application when the court rendering judgment did not have jurisdiction over the subject matter. McRary, supra. To the extent that the Kentucky decree attempted to affect title to property in North Carolina, it is void. Lea, supra; Noble, supra; McRary, supra. We are not bound by such part of the Kentucky decree.

We note that a court having jurisdiction over the parties may, by a decree in personam, require the execution of a conveyance of real property in another state. Courtney v. Courtney, 40 N.C.App. 291, 253 S.E.2d 2 (1979). We are not, however, presented with such a situation. The Kentucky court did not merely order plaintiff to convey her interest in the North Carolina realty; rather it purported to award title to defendant, consonant with the nature of an in rem proceedinga proceeding to which the Kentucky court had no jurisdiction.

A conveyance of realty to a husband and wife creates an estate by the entireties. Freeze v. Congleton, 276 N.C. 178, 171 S.E.2d 424 (1970). Upon divorce, the estate is converted into a tenancy in common, each former spouse entitled to an undivided one-half interest in the property. Branstetter v. Branstetter, 36 N.C.App. 532, 245 S.E.2d 87 (1978). Pursuant to such generally accepted principles of law, plaintiff is a co-tenant with defendant, her former husband, and is entitled to a one-half undivided interest in the disputed property.

There are no genuine issues of material fact in controversy between the parties. The legal principles are settled and clear. Finally, a Declaratory Judgment is the appropriate action to perform the duty of quieting title to real property. York v. Newman, 2 N.C.App. 484, 163 S.E.2d 282, cert. denied, 274 N.C. 518 (1968).

We, therefore, affirm the trial court order.

Affirmed.

WHICHARD and PHILLIPS, JJ., concur.