In Re Smith's Will

107 S.E.2d 89 (1959)

249 N.C. 563

In the Matter of the WILL of Amos Gaston SMITH, Deceased.

No. 238.

Supreme Court of North Carolina.

February 25, 1959.

C. M. Llewellyn, M. B. Sherrin, Jr., Concord, for propounders.

Payne & Hedrick, Charlotte, for caveator.

DENNY, Justice.

The propounders' first exception and assignment of error is to the finding of fact that the caveator tendered to the propounders and their attorney a certified check in the sum of $3,500 within the 90 days as provided in the consent judgment; that the caveator has agreed to accept a deed without warranty to the said lands from the propounders; that the propounders have failed and refused to convey their right, title and interest in the property in controversy as directed in said judgment.

The propounder appellants do not contend that the caveator failed to tender the $3,500 within the time required by the terms of the consent judgment, but they contend that since their attorney refused to prepare a deed in accordance with the provisions of the agreement set out in the judgment, on the ground that he did not represent the wife of Vernie Goodman, who was not a party to the consent judgment, and that since Tuttle Gaston Smith thereafter presented a warranty deed for the propounders to sign, that the tender was thereby made conditional. We do not so construe the contract. It was the legal duty of the propounders to have a deed to all their right, title and interest in the lands in controversy prepared, executed and ready for delivery to the caveator when he *93 tendered the certified check for $3,500, in accordance with the requirements of the consent judgment. It was agreed that the tender of the certified check and the delivery of the deed would be a simultaneous transaction.

The fact that the propounders refused to prepare a deed as called for in the agreement and incorporated in the consent judgment, because the wife of Vernie Goodman did not sign the consent judgment, constitutes neither a justifiable nor a legal excuse for their failure to prepare, execute and tender a proper deed. Bethell v. McKinney, 164 N.C. 71, 80 S.E. 162.

The vested remainder which Vernie Goodman has in the lands in controversy, under the provisions of the last will and testament of Amos Gaston Smith, is not subject to dower so long as the life estate in the lands held by Rena Goodman Smith, his mother, remains in existence. Weir v. Tate (Humphries), 39 N.C. 264; Royster v. Royster, 61 N.C. 226; Houston v. Smith, 88 N.C. 312; Redding v. Vogt, 140 N.C. 562, 53 S.E. 337, 6 Ann.Cas. 312; Thomas v. Bunch, 158 N.C. 175, 73 S.E. 899; 17A Am.Jur. Dower, section 52, page 321. Therefore, a husband may convey his reversion or remainder either personally or it may be conveyed by operation of law, during the existence or continuance of an estate for life, without the joinder of his wife, and his wife thereby loses all claim to dower therein. Geldhauser v. Schulz, 93 N.J.Eq. 449, 116 A. 791, 21 A.L.R. 1070, and 28 C.J.S. Dower § 27, page 88, et seq.

Even if the wife of Vernie Goodman had a right of dower in the remainder vested in her husband and should refuse to join in the deed required by the terms of the consent judgment, the caveator, Tuttle Gaston Smith, under an appropriate order for specific performance on the part of the propounders, would be entitled to have the agreed purchase price abated to the extent of the value of Vernie Goodman's wife's dower. Bethell v. McKinney, supra.

The findings of fact to which the propounders excepted are supported by competent evidence and the assignment of error directed thereto is overruled.

The second assignment of error is directed to the conclusion of law by the court below that the caveator is entitled to the possession of the premises in dispute.

In our opinion, the consent judgment is not sufficient to constitute a transfer of title within the contemplation of G.S. § 1-227 and G.S. § 1-228, and we so hold. Morris v. White, 96 N.C. 91, 2 S.E. 254; Skinner v. Terry, 134 N.C. 305, 46 S.E. 517; Evans v. Brendle 173 N.C. 149, 91 S.E. 723. Even so, the consent judgment, upon the facts found by the court below, is sufficient to support an order for specific performance in an action brought for that purpose. Combes v. Adams, 150 N.C. 64, 63 S.E. 186; Harper v. Battle, 180 N.C. 375, 104 S.E. 658, 20 A.L.R. 357; Knott v. Cutler, 224 N.C. 427, 31 S.E.2d 359.

The third and final assignment of error is to the conclusion of law that the propounder Rena Goodman Smith is in contempt of court and the entry of judgment to that effect.

We construe the consent judgment entered on 20 January 1958 with respect to the settlement of the estate of Amos Gaston Smith to be nothing more than a contract between the propounders on the one hand and the caveator on the other. The terms of the agreement, incorporated in the consent judgment, with the approval of the court, required Rena Goodman Smith and Vernie Goodman to convey all their right, title and interest, in fee simple, in the real estate of which Amos Gaston Smith died seized, to Tuttle Gaston Smith: provided, Tuttle Gaston Smith tendered to the attorney for the propounders, within 90 days from 20 January 1958, a certified check payable to Rena Goodman Smith and Vernie Goodman in the sum of $3,500. However, if such check was not so tendered, *94 the propounders were not to be obligated to so convey their right, title and interest in the said lands.

A breach of contract is not punishable for contempt under G.S. § 5-8. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345; Brown v. Brown, 224 N.C. 556, 31 S.E.2d 529; Davis v. Davis, 213 N.C. 537, 196 S.E. 819.

The order below, insofar as it directs that Tuttle Gaston Smith be put in possession of the lands in controversy, and so much thereof as holds Rena Goodman Smith to be in contempt of court, is

Reversed.