Noble v. Pittman

86 S.E.2d 89 (1955)

241 N.C. 601

Mrs. Beatrice Marie Field NOBLE v. Mrs. Phyllis Gant Field PITTMAN.

No. 92.

Supreme Court of North Carolina.

March 9, 1955.

*91 Don C. Young, Asheville, for plaintiff-appellant.

Harkins, VanWinkle, Walton & Buck, Asheville, for defendant-appellee.

HIGGINS, Justice.

The outcome of this case in the trial below was made to depend upon the validity of the quitclaim deed signed, acknowledged and delivered on 8 September 1944, by Beatrice Marie Field to Henry Field. The examining or certifying officer before whom the execution of the deed was acknowledged did not take the privy examination of the grantor and did not certify that "it appeared to the satisfaction of such officer that the wife freely executed such contract and freely consented thereto at the time of her separate examination, and that the same is not unreasonable or injurious to her." Such were the requirements of the statute in effect at the time the deed was executed in order that a married woman might pass title to her husband to any part of her real estate. It may be noted that the privy examination of the wife was made unnecessary and the form of the further certificate was slightly changed by Chapter 73, Session Laws 1945 of the North Carolina General Assembly, ratified on 7 February 1945. Compliance with the statutory requirement in effect at the time the deed was executed was necessary to its validity. Failure to comply with the requirements rendered the deed of a married woman to her husband absolutely void. Butler v. Butler, 169 N.C. 584, 86 S.E. 507; Caldwell v. Blount, 193 N.C. 560, 137 S.E. 578.

It is conceded both in the briefs and on the argument here that the deed to Henry Field was not executed in the formality required in the case of a deed from a married woman to her husband. It is conceded, also, that if the deed was executed after the decree of divorce was entered in the Chancery Division of the Circuit Court of Wayne County, Michigan, then the certificate of the examining officer is in proper form and the deed would be valid to pass title to the plaintiff's interest in the land in controversy. It may be conceded, also, if the deed was executed and delivered before the decree of divorce was entered, the deed would be void and would not pass title.

The defendant sets up as a defense to plaintiff's action the property settlement in the divorce decree, contending the decree gave to Henry Field the land in controversy in consideration of the payment by him of $500 in cash to the plaintiff; that the plaintiff is, therefore, estopped to deny title of the defendant, his grantor. The answer is that the Circuit Court of Wayne County, Michigan, was without power to enter any decree affecting title to land in North Carolina and to the extent the decree attempted to do so, it is void. McRary v. McRary, *92 228 N.C. 714, 47 S.E.2d 27, and cases there cited.

The evidence in the case was conflicting as to the time of the execution and delivery of the plaintiff's deed to Henry Field. According to the plaintiff's evidence the deed was executed and delivered in Mr. DeWitt's office before the divorce decree had been entered. According to the defendant's evidence the deed was witnessed by Mr. Porter and delivered after the divorce had been granted. There is no evidence in the record indicating the deed was either executed or delivered at or during the hearing of the divorce proceeding. Notwithstanding the fact the deed and the certificate of acknowledgment recite that Beatrice Marie Field is a single woman, the former wife of Henry Field, all the evidence shows the divorce decree and the deed were prepared by the lawyers in anticipation of the divorce and before it was actually granted.

After delivering a clear, accurate and comprehensive charge on all other aspects of the case, the judge charged the jury as follows:

"(a) The Court further instructs you that if you find that the quit-claim deed which is in evidence in this cause from this plaintiff to Henry Field, purporting to convey the property described in the complaint, was signed by her and delivered to the grantee therein or his representative as a simultaneous transaction, that is, the granting of the divorce and the signing and delivery of the quit-claim deed occurred at or approximately the same time with the intention of the parties, that all of the actions be performed by all the parties as one transactionsimultaneous then the Court instructs you that the deed in question would be a valid instrument and would transfer whatever title this plaintiff had to Henry Field; * * ."

The necessity for the certificate of acknowledgment in the manner provided for married women continued up to the moment the divorce decree was entered and became effective. Thereafter the plaintiff was free to contract as if she were unmarried. It is not enough for the wife to execute a deed without the certificate required of married women "at or approximately the same time as her divorce decree is granted." She must be free before she executes and delivers the deed.

The evidence in the case presented a clear-cut question of fact. If the deed was executed before the divorce, it is void. If it was executed simultaneously with the divorce, it is void. If it was executed after the divorce, it is valid. The judge so should have instructed the jury. The instruction that if the signing and delivery of the deed and the granting of the divorce occurred at or approximately the same time with the intention of the parties that all of the actions be performed by all the parties as one transactionsimultaneous that the deed in question would be valid, was erroneous.

This record does not present, and we do not decide, the question as to whether a deed executed by a married woman before divorce, and void for failure to comply with the statutory requirements as to its execution, can become valid by delivery after divorce.

For the error in the charge, it is ordered there be a

New trial.

BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.