Elledge v. WelchAnnotate this Case
76 S.E.2d 340 (1953)
238 N.C. 61
ELLEDGE v. WELCH et al.
Supreme Court of North Carolina.
June 12, 1953.
*344 George W. Braddy, Fred M. Parrish, Jr., and Harvey A. Lupton, Winston-Salem, for defendants Creed Carlous Welch and Elbert Lee Welch, appellants.
Parker & Lucas, Winston-Salem, for petitioner, appellee.
Deeds between tenants in common, when the purpose is partition, operate only to sever the unity of possession and convey no title. Each party holds precisely the same title which he had before the partition, and neither cotenant derives any title or interest from his cotenants, the theory being that the undivided interest held by each in the whole tract is severed by the partition from the interests of the others and concentrated in the parcel set apart to each, with the interests of the others being excluded therefrom. Wood v. Wilder, 222 N.C. 622, 24 S.E.2d 474; Valentine v. North Carolina Granite Corporation, 193 N.C. 578, 137 S.E. 668; Garris v. Tripp, 192 N.C. 211, 134 S.E. 461; Virginia-Carolina Power Co. v. Taylor, 191 N.C. 329, 131 S.E. 646. See also 68 C.J.S., Partition, § 17, p. 23.
Accordingly, a deed made by one tenant in common to a cotenant and the latter's spouse in partitioning inherited land or land held as a tenancy in common, does not create an estate by the entirety or enlarge the marital rights of the spouse as previously fixed by law. Duckett v. Lyda, 223 N.C. 356, 26 S.E.2d 918; Wood v. Wilder, supra; Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L.R.A. 722; 68 C.J.S., Partition, § 17, p. 24; Annotations: 132 A.L.R. 630, p. 637; 172 A.L.R. 1216, p. 1218.
And the fact that deeds exchanged between tenants in common in effecting partition may be regular form deeds of bargain and sale, with the usual covenants of title, seizin, and warranty, ordinarily does not affect the operation of the rule that a partition deed creates no new, different, or additional title. Wood v. Wilder, supra; Duckett v. Lyda, supra; Harrison v. Ray, supra. See also 47 C.J., p. 281; 68 C.J.S., Partition, § 17, pp. 22 and 23. Cf. Sutton v. Sutton, 236 N.C. 495, 73 S.E.2d 157, which is factually distinguishable and governed by a different rule.
In the light of the foregoing principles of law, it is apparent that the record does not sustain the appellants' allegation that Luther J. Welch took title by purchase under the Clinard deed, rather than by inheritance from his grandfather, J. J. Williard. Wood v. Wilder, supra; Duckett v. Lyda, supra. And equally untenable is appellants' plea of estoppel against R. Glendora Clinard. Harrison v. Ray, supra.
The testimony of the defendant R. Glendora Clinard to the effect that no consideration was paid in connection with the exchange of partition deeds between her and Luther J. Welch was violative of the dead man statute, G.S. § 8-51, and should have been excluded. Even so, appellants lost the benefit of their exceptions by affirmatively eliciting on cross-examination substantially the same testimony. Willis v. City of New Bern, 191 N.C. 507, at page 514, 132 S.E. 286. Cf. Shelton v. Southern R. Co., 193 N.C. 670, 139 S.E. 232. Besides, under the theory of the trial as shaped by the pleadings, the facts developed by the challenged testimony were not pertinent to the determinative issues. Therefore, in any aspect of the case, the reception of this evidence may be treated as harmless. Wilson v. Suncrest Lumber Co., 186 N.C. 56, 118 S.E. 797; State v. Rainey, *345 236 N.C. 738 at page 741, 74 S.E.2d 39. See also Muse v. Muse, 236 N.C. 182, 72 S.E.2d 431.
From the admissions in the pleadings and the uncontroverted evidence in the case it is manifest, as the only reasonable inference deducible, that Luther J. Welch derived title to the land in controversy by inheritance from his grandfather, J. J. Williard, and that the Clinard deed to the decedent Welch, under which the appellants claim, was a partition deed which created no new or additional title. And if this be so, it follows that upon the death of Luther J. Welch, intestate and without lineal descendants, title to the lot passed by inheritance to his aunt, R. Glendora Clinard, who was the next and only collateral relation of Luther J. Welch of the blood of the purchasing ancestor, J. J. Williard, capable of inheriting under our fourth canon of descent, G.S. § 29-1, Rule 4. Poisson v. Petteway, 159 N.C. 650, 75 S.E. 930.
Therefore the appellants may not predicate error upon the peremptory instructions given the jury by the presiding judge. Nor have the appellants shown error prejudicial to them in any other phase of the case. All their assignments of error must be overruled, and it is so ordered.
However, error as against the defendant Zella C. Welch appears on the face of the record. She has not appealed. Nevertheless, the record dicloses she is an adjudged incompetent person. As such, her rights were committed to the care of the court. She is deemed to have pleaded specially all pertinent defenses. G.S. § 1-16. In the exercise of our supervisory power, we will assume jurisdiction on her behalf and treat errors committed against her as being before the Court and duly presented for review. Constitution of North Carolina, Article IV, Section 8; Ange v. Ange, 235 N.C. 506, 71 S.E.2d 19; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663; Wescott v. First & Citizens Nat. Bank of Elizabeth City, 227 N.C. 644, 43 S.E.2d 844.
First, it is noted that the judgment in making provision for the disbursement of the proceeds of sale gives the unsecured debts of the decedent and the costs and charges of administration priority over the dower claim of the widow. This is error. The dower claim is entitled to priority, both as against the husband's creditors, G.S. § 30-3; Holt & Sons v. Lynch, 201 N.C. 404, 160 S.E. 469; Curry v. Curry, 183 N.C. 83, 110 S.E. 579, and also the costs and charges of administration. 28 C.J.S., Dower, § 40, p. 107.
Next, we note this is a case in which the widow is entitled to a homestead. The State Constitution, Article X, Sec. 5, provides that when a husband dies childless and in debt, the widow is entitled to a homestead in his lands. McAfee v. Bettis, 72 N.C. 28; Smith v. McDonald, 95 N.C. 163.
Here both prerequisites of this provision of the Constitution have been met. Also, the record discloses that the intestate, Luther J. Welch, owned other lands. One parcel, not involved in the appeal as perfected, appears to have been sold under order of the court and part of the proceeds have been impounded to await decision herein. Ordinarily, under the procedure prescribed by statute, where a special proceeding, like this one, is brought by an administrator to sell land to make assets, the facts in respect to the widow's homestead rights are brought to the attention of the court for determination in the pending cause. G.S. § 1-389.
It nowhere appears in the pleadings or record that the homestead rights of this widow have been asserted by the guardian or investigated by the court. It may be that such investigation has been made and that the widow's homestead rights have been determined and adequately fixed by appropriate action of the court apart from this proceeding. However, against the other eventuality, the case will be remanded with direction that the court ascertain whether these homestead rights have been properly determined and fixed; and if not, the court under proper procedure will conduct such further hearings and enter such decrees as the ends of justice require for the protection of the interests of this litigant, to the extent, if need be, of setting aside, or treating as surplusage, *346 portions of the verdict rendered by the jury. See McAfee v. Bettis, supra; Spence v. Goodwin, 128 N.C. 273, 38 S.E. 859; Oakley v. Van Noppen, 96 N.C. 247, 2 S.E. 663; Campbell v. White, 95 N.C. 491. See also 29 N.C.L.Rev., 143; McIntosh, N. C. Practice and Procedure, p. 881 et seq.; Mordecai's Law Lectures, Second Edition, pp. 380, 381, 520, 1328, and 1333; Williams v. Johnson, 230 N.C. 338, 53 S.E.2d 277.
The judgment below will be set aside and the cause remanded to the Superior Court of Forsyth County for further proceedings and entry of decrees in accordance with this opinion. Let the plaintiff, administrator, pay the costs of the appeal.