Hoover v. Smith

444 S.E.2d 546 (1994)

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Nature of the Case

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Facts

A deed dated November 1, 1928, conveyed to Add Shoemaker and Bessie Shoemaker, his wife, one acre of land on Gap Road, near Peak Mountain, in Rockingham County. It stated that the grantees herein named are to have and to hold the said land and tenements as joint tenants, and not as tenants in common. Add Shoemaker died intestate in 1951, survived by his wife, Bessie, and several children. Bessie passed away in 1984. During her lifetime, but subsequent to Add's death, she conveyed to Wilmer A. Shoemaker, one of her sons, what purported to be the entire interest in a 0.542-acre portion of the land she and Add Shoemaker had acquired by the 1928 deed. Wilmer died testate before 1988 and, in his will, devised the 0.542-acre tract to Shelby Jean Moubray. By deed dated January 28, 1988, Moubray conveyed the tract to David Martin Smith and Vivian Secrist Smith. On February 19, 1992, Ps, all children of Add and Bessie Shoemaker, filed a bill of complaint against Alvin Leon Shoemaker, Nellie Craun, and Charles Shoemaker, also children of Add and Bessie Shoemaker. Named as defendants were Shelby Moubray and David and Vivian Smith (Ds), the parties to the 1988 deed. Ps claim Add and Bessie became 'joint tenants with 'each obtaining a one-half moiety in such real estate.' Thus upon the death of Add Shoemaker, his one-half moiety passed by intestate succession to his surviving children, who had never conveyed away any interest in the moiety. Ps alleged that the real estate was not susceptible of convenient partition in kind and prayed for its sale, with a division of the proceeds among those entitled as their respective interests may appear. Ds demurrered claiming the 1928 deed established in Add and Bessie Shoemaker a joint tenancy with the right of survivorship. The trial court sustained the demurrers and, dismissed the case. Ps appealed.