
    KATE STALLINGS v. BELLE WALKER.
    (Filed 30 October, 1918.)
    1. Tenants in Common — Partition—Parol Agreement.
    A parol partition of lands by tenants in common is invalid unless tbe title is established by sufficient adverse possession under tbe statutes of limitation.
    2. Tenants in Common — Partition — Deeds and Conveyances — Conditional Execution — Clerks of Court.
    Where a married woman seeks to partition lands as tenant in common, and tbe defense is interposed that tbe lands had been formerly divided by interchangeable deeds, and tbe cause has been transferred to tbe civil issue trial docket, and upon issues raised it has been, determined by tbe jury upon sufficient evidence, with tbe burden of proof on tbe plaintiff, that she bad signed her deed upon condition that her husband should give bis written assent, which be did not do, and tbe deed bad not been delivered: Held, tbe deed was inoperative and tbe cause was properly remanded to tbe clerk to proceed with before him.
    3. Tenants in Common — Partition—Title.
    Proceedings to partition lands,, unless tbe title has been made an issue, have only tbe effect of apportioning tbe lands among tbe tenants under their common title.
    4. Husband and Wife — Deeds and Conveyances — Written Consent — Constitutional Law.
    Article X, section 6, of our Constitution makes tbe written consent of tbe. husband necessary to tbe wife’s conveyance of her lands.
    Allen, J., concurring in result.
    Akpeal by defendant from Shaw, J., at February Term, 1918, of' ROCKINGHAM.
    Tbis is a petition for partition, certified to tbe court at term and'. tried upon issues before a jury. From tbe verdict and judgment tbe defendant appealed.
    
      P. W. Glideiuell and W. M. Hendren for plaintiff.
    
    
      W. R. Dalton, J. R. Joyce, and 'Manning & Kitchin for defendant..
    
   Clase;, 0. J.

Tbis is a petition for partition transferred to the-court at term upon issues raised by tbe answer. D. G-. Flack died intestate at tbe age of 91, leaving two children, tbe plaintiff and defendant and two tracts of land, on one of wbieb (157 acres) tbe plaintiff resided, and tbe other and more valuable tract (tbe “borne place”), containing 284 acres, where tbe defendant, a widow, resided with her father.

There was evidence of a request by tbe father that bis two daughters should make an equal division, allotting to tbe plaintiff enough of tbe borne tract wbicb, if added to tbe tract on wbicb sbe resided, would make equality. There is evidence that in tbe partition alleged by defendant to bave been made after tbeir father’s death there is nearly $7,000 more in value allotted to tbe defendant than to tbe plaintiff. It was also in evidence that tbe plaintiff executed a deed to tbe defendant for her share in such division, and that the defendant executed a deed to tbe plaintiff. Tbe plaintiff, in her reply, alleges, however, and offered proof, that when sbe signed tbe deed to tbe defendant it lacked tbe “written assent of her husband,” and that there was a parol agreement that it was not to take effect and be recorded until tbe husband bad agreed to tbe equality of tbe partition and given bis written assent. It is also alleged and in evidence that tbe deed by tbe defendant to tbe plaintiff was never delivered to nor accepted by tbe plaintiff, but was recorded without such delivery at tbe instance of tbe defendant.

Upon tbe issues submitted to tbe jury upon tbe pleadings tbe jury found on tbe first four issues that there was a parol agreement between tbe plaintiff and defendant to partition tbe lands left by tbeir father, but that said lands bave not been divided pursuant to said agreement, though both parties bave been in sole and exclusive possession of their respective shares as claimed by tbe defendant, and that tbe parties did not intend thereby to ratify said partition. A parol partition is invalid unless followed by possession sufficient under tbe statute of limitations. Tuttle v. Warren, 153 N. C., 461.

Tbe fifth issue is as follows: “Was tbe paper-writing from Mrs. 'Stallings to Mrs. Walker dated 17 January, 1913, purporting to be a deed for lands now claimed by defendant, signed, acknowledged and delivered upon tbe understanding and. conditions alleged in tbe reply?” To this issue tbe jury responded “Yes.”

Tbe reply alleged that said paper-writing by plaintiff to defendant purporting to convey to her tbe land wbicb tbe defendant claims was absolutely void and of no binding effect, upon her because her husband did not join in such deed nor authorize tbe execution thereof; that it was executed by her in bis absence and upon an agreement that it should be of no effect till it should receive tbe “written assent” of her husband; that tbe survey for a division was made by a surveyor in tbe employment of tbe son of tbe defendant, and that tbe deeds were drawn by a lawyer in bis employment in tbe absence of tbe plaintiff’s husband and without consulting her, and that tbe division, as made, is inequitable and would result in tbe loss of 65 acres of land to tbe plaintiff.

Tbe sixth issue, finding that tbe plaintiff and defendant are tenants in common of tbe two tracts of land, each owning an undivided one-balf interest therein, and that tbe plaintiff is entitled to bave actual partition of land followed as a matter of law, and tbe court remanded tbe cause to tbe clerk to be proceeded with tbat sueb partition shall be made.

While' there are numerous exceptions, tbe controversy, as tried, is almost entirely one of fact, and tbe court properly instructed tbe jury as follows: “Tbe fifth issue is, ‘Was tbe paper-writing from Mrs. Stal-lings to Mrs. Walker signed, acknowledged and delivered upon tbe understanding and condition alleged in tbe reply?’ Now tbe plaintiff alleges tbat it was, gentlemen of tbe jury, and tbe burden is on tbe plaintiff, Mrs. Stallings, to show by tbe greater weight of tbe evidence tbat tbat is true; and if she has so shown you will answer tbat issue ‘Yes,’ otherwise you will answer it ‘No.’ ”

Tbe court further charged tbe jury: “If you find from tbe greater weight of tbe evidence tbat she signed tbat deed upon tbat condition, with tbe agreement tbat it was not to be effective if her husband did not sign it, it would be your duty to answer tbe fifth issue ‘Yes.’ ”

Tbe defendant contends that where there is a partition of the-realty by consent, and tbe tenants mutually convey by deed to each other, “no title passes, but it is simply a destruction of tbe unity of possession.” Harrison v. Ray, 108 N. C., 215, which was affirmed, Harrington v. Rawls, 131 N. C., 41, which held tbat “A deed of-partition conveys no title, but is simply a severance of tbe unity of possession.” To same purport, Jones v. Myatt, 153 N. C., 230, bolds, “It is settled by decisions of this Court tbat actual partition merely designates tbe share of tbe tenant in common and allots it to him in severalty. It does not create or manufacture any title,” citing Carson v. Carson, 122 N. C., 645; Williams v. Lewis, 100 N. C., 142.

Weston v. Lumber Co., 162 N. C., 165, cites tbe above cases and bolds tbat where tbe title to land is not in- controversy tbe effect of a partition is to designate and allot to each tenant bis share in severalty, but does not create any title which they did not have before. Tbe defendant contends from this tbat therefore it was not necessary to tbe validity of tbe deed from Mrs. Stallings tbat her husband should give bis written assent to tbe deed conveying to Mrs. Walker tbe designated interest in severalty.

It is true tbat tbe husband, under our Constitution, Art. X, sec. 6, has no interest as husband in bis wife’s property, real or personal. Tbe provision tbat be must give bis written assent to conveyances by her of realty is tbe sole survival in our Constitution of tbe ancient idea tbat a wife must be under tbe guardianship and control of her husband and is incompetent to transact business. This requirement in our Constitution is omitted in nearly all tbe other State constitutions. It is not based upon bis having any interest in bis wife’s land, nor on bis having a vested interest therein' at her death, for she has full authority to devise tbe same without his consent and'deprive him of any interest as tenant by the curtesy. Accordingly, it is held that while his assent must be in writing, it need not be by deed, for he has nothing to convey; that his joining with her in the instrument is sufficient. Jones v. Craigmiles, 114 N. C., 613, and cases there cited, and that his signing the instrument merely as a witness is a sufficient “written assent.” Jennings v. Hinton, 126 N. C., 48; or a letter written by him is sufficient. Brinkley v. Ballance, 126 N. C., 393.

The husband’s “written assent,” therefore, is not based upon his having any interest in the property or in the title which he must join in conveying. The written assent is required not to aid in the conveyance of the property nor of the title to property in which he has no interest, but as a requisite to the validity of a conveyance by the wife. There has not been any written assent by the husband, and, therefore, a conveyance by the plaintiff to the defendant of the share claimed by the latter would be invalid for the lack of the written assent required by the Constitution. While such instrument of partition, if otherwise valid, would not be a conveyance of any title, it is a practical “conveyance” by the plaintiff to the defendant, as appears by the evidence in this case, of $7,000 more of the property than was a just and equal share to which she was entitled.

While the husband has no interest in the wife’s property, he has a “veto” power over the alienation of her realty by withholding his written assent, without which her conveyances of realty are invalid. On the other hand, the wife has no veto power over the conveyances by the husband of his realty, though she has an interest therein. A deed by him of his property is valid without her joinder, subject only to her contingent right of dower should she survive him.

However, the court submitted to the jury the issue whether the deed was delivered by Mrs. Stallings upon an express condition, agreed to-by Mrs. Walker, that it was to be void and of no effect unless concurred in “by the written assent of her husband,” and the jury have found that this was true. Upon this ground the judgment entered was correct.

No error.

AlleN, J.,

concurring in result: I think the judgment of the Court, is correct, but I do not agree to the statement that the assent of the husband to the conveyance of the land of the wife “need not be by deed.” It is expressly held otherwise in Ferguson v. Kinsland, 93 N. C., 337 Jackson v. Beard, 162 N. C., 109; Warren v. Dail, 170 N. C., 406; Graves v. Johnson, 172 N. C., 178; Hensley v. Blankinship, 174 N. C., 760, and the cases cited in the opinion do not support the proposition, as none of them have any relation to a deed for land. The subject-matter of Jones v. Craigmiles was a note; of Jennings v. Hinton, an insurance policy; and of Brinkley v. Ballance, merchandise sold on a written order.  