Sutton v. SuttonAnnotate this Case
73 S.E.2d 157 (1952)
236 N.C. 495
SUTTON et al. v. SUTTON et al.
Supreme Court of North Carolina.
November 19, 1952.
*159 Jones, Reed & Griffin, Kinston, for defendants-appellants.
Sutton & Greene, Kinston, for plaintiffs-appellees.
The words "without lawful heirs" as used by Julius E. Sutton in Item 5 in his last will and testament will be construed to mean "without lawful issue." Massengill v. Abell, 192 N.C. 240, 134 S.E. 641; Hudson v. Hudson, 208 N.C. 338, 180 S.E. 597; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662.
The determinative question on this appeal is whether the deeds executed by the devisees named in the last will and testament of Julius E. Sutton constituted a mere partition of the devised land, or were they sufficient to convey the contingent as well as the vested interest therein of the several grantors to the respective grantees.
Ordinarily, a voluntary partition of land between or among tenants in common, even when accompanied by deeds, has, in law, only the effect of an assignment to each of the several tenants of his share or part of the common property. Such partition creates no new estate and conveys no title but merely severs the unity of possession and ascertains and fixes the physical boundaries of the several parts of the common property to be allotted and held in severalty by the respective tenants. Wood v. Wilder, 222 N.C. 622, 24 S.E.2d 474; Valentine v. North Carolina Granite Corp., 193 N.C. 578, 137 S.E. 668; Virginia-Carolina Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646; Beacom v. Amos, 161 N.C. 357, 77 S.E. 407; Jones v. Myatt, 153 N.C. 225, 69 S.E. 135; Harrington v. Rawls, 136 N.C. 65, 48 S.E. 571; Carson v. Carson, 122 N.C. 645, 30 S.E. 4; Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L.R.A. 722; Williams v. Lewis, 100 N.C. 142, 5 S.E. 435, 6 Am.St.Rep. 574; 40 Am.Jur., Partition, Section 126, page 106.
Likewise, a proceeding to partition land, unless the title has been put in issue, has the effect only of allotting to each tenant his share in severalty but does not create any title that the tenants did not formerly hold. Weston v. John L. Roper Lumber Co., 162 N.C. 165, 77 S.E. 430; Stallings v. Walker, 176 N.C. 321, 97 S.E. 25; Nobles v. Nobles, 177 N.C. 243, 98 S.E. 715; Bailey v. Mitchell, 179 N.C. 99, 101 S.E. 511; Baugham v. Trust Co., 181 N.C. 406, 107 S.E. 431; Valentine v. North Carolina Granite Corp., supra; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440.
On the other hand, where devisees who are tenants in common join in a partition proceeding and petition the court to allot to each of them their share of the lands devised, in severalty, in fee simple, free from the limitation over to them, respectively, in the event any of them should die without issue surviving, such petition will constitute a surrender and release of the right of survivorship. Baugham v. Trust Co., supra. Cf. Wallace v. Phillips, 195 N.C. 665, 143 S.E. 244.
It was also held in Beacom v. Amos, supra [161 N.C. 357, 77 S.E. 409], that a similar condition could be eliminated by deed, in which case the partition was by deed. The lands in question were devised subject to contingent interests. The devisees agreed upon a division of the lands and by deed conveyed to each other certain parts of the devised property "so that they might hold the same in severalty, absolutely and in fee simple, free from any claims therein of the one party against the other, * * *." The Court said: "They *160 have conveyed to each other all the interest and estate in the land they acquired under said will, both vested and contingent. * * * It is perfectly clear that the intention, as evidenced by the deeds, was that each should have and enjoy her several portion as the absolute and unconditional owner thereof in fee, so that the right of survivorship created by the limitation in the will should cease and determine, and an indefeasible estate should vest instead thereof."
We hold that where deeds are exchanged in a voluntary partition of land, and such deeds do not purport to convey the land described therein, but merely to release and quitclaim the interest of the grantors in and to the described premises, that such deeds will not create new estates or change the character of the title held by the partitioners prior to the execution of the deeds. But, on the other hand, where partition deeds purport to bargain, sell, quitclaim, and convey all the right, title interest, and estate of the grantors in the described premises, in fee simple, such deeds do more than merely set apart each to the other the respective parcels of land. Beacom v. Amos, supra; Weil & Bros. v. Davis, 168 N.C. 298, 84 S.E. 395; Williams v. Williams, 175 N.C. 160, 95 S.E. 157.
In the case of Bourne v. Farrar, 180 N.C. 135, 104 S.E. 170, 173, it was said: "The conveyance of `all the grantor's right, title, and interest in certain described property is a conveyance of all his estate in such property.' 13 Cyc., 655. In construing the work `interest' in a statute, it was held to include a contingent remainder (Young v. Young, 89 Va. 675, 17 S.E. 470, 23 L.R.A. 642), and includes also every right, legal and equitable. * * * we have been unable to find any case holding that a conveyance of `all my interest' does not include a contingent remainder."
And in the case of Hobgood v. Hobgood, 169 N.C. 485, 86 S.E. 189, 191, Hoke, J., in speaking for the Court, said: "* * * our decisions on the subject being to the effect that, when the holders of a contingent estate are specified and known, they may assign and convey it, and, in the absence of fraud or imposition, when such a deed is made, it will conclude all who must claim under the grantors, even though the conveyance is without warranty or any valuable consideration moving between the parties." Bodenhamer v. Welch, 89 N.C. 78; Kornegay v. Miller, 137 N.C. 659, 50 S.E. 315, 107 Am.St.Rep. 505; Grace & Co. v. Johnson, 192 N.C. 734, 135 S.E. 849; Croom v. Cornelius, 219 N.C. 761, 14 S.E.2d 799; Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625.
In light of our decisions, we hold that the entire estate, both vested and contingent, was conveyed by the grantors in the respective deeds involved in this appeal, and that the judgment entered below must be upheld.