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Simmons v. Quick Stop Food Mart Inc.

Filed: February 16, 1982.

JACQUELINE B. SIMMONS
v.
QUICK STOP FOOD MART, INC.



Appeal by plaintiff from Cherry, Judge. Order entered 23 February 1981 in District Court, Cumberland County. Heard in the Court of Appeals 10 December 1981.

Hill, Judge. Judges Vaughn and Webb concur.

Hill

On 21 May 1970 Johnny L. Wood [hereinafter referred to as Wood] and Oscar Harold Simmons [hereinafter referred to as Simmons] executed a partnership agreement creating Wood and Simmons Investments [hereinafter referred to as the partnership]. This agreement was never recorded, nor was the partnership name registered. On the same day, Wood conveyed to "Johnny L. Wood and Oscar Harold Simmons d/b/a Wood and Simmons Investments, a partnership" two tracts of land along North Carolina Highway 87 in Cumberland County, on which was situated a store building. On 28 May, a lease was executed by "Johnny L. Wood and Oscar Harold Simmons d/b/a Wood and Simmons Investments, a partnership," to defendant. The lease, signed by Wood and Simmons individually, was for a term of ten years with two five-year options to renew.

On 30 June 1976, Wood and Simmons dissolved the partnership and "Johnny L. Wood and wife, Zula Wood," conveyed "all of their one-half undivided interest" in the property to "Oscar Harold Simmons and wife, Jacqueline B. Simmons." The deed was recorded 16 July 1976.

Simmons and his wife, plaintiff herein, executed a separation agreement on 5 November 1979 which provided that he convey to her the property in exchange for other tracts of land. The deed of conveyance between "Oscar Harold Simmons," grantor, and "Jacqueline

B. Simmons," grantee, was recorded 5 November 1979. The following day, 6 November 1979, plaintiff notified defendant that it must vacate the store building. Defendant refused to vacate the building. Defendant recorded its lease 26 November 1980.

Defendant is entitled to summary judgment "if there was no genuine issue of material fact concerning an esential [sic] element of the plaintiff's claim." Ramsey v. Rudd, 49 N.C. App. 670, 672, 272 S.E.2d 162, 163 (1980), disc. rev. denied, 302 N.C. 220, 276 S.E.2d 917 (1981). Accord, Best v. Perry, $1 N.C. App. 107, 254 S.E.2d 281 (1979). Plaintiff's title to the property is an essential element in an ejectment proceeding. Hayes v. Ricard, 245 N.C. 687, 97 S.E.2d 105 (1957).

Plaintiff's sole contention on appeal is that the deeds of 16 July 1976 and 5 November 1979 convey legal title to her and thereby "confers a superior right to the prior lease." Defendant argues that title remains with the partnership, which still is its landlord, since the partnership never conveyed "out" its interest in the property. Thus, the question is whether the 21 May 1970 conveyance "in" to "Johnny L. Wood and Oscar Harold Simmons d/b/a Wood and Simmons Investments, a partnership" vested title in the partnership or in the partners as individuals.

"All property originally brought into the partnership stock or subsequently acquired by purchase or otherwise, on account of the partnership, is partnership property." G.S. 59-38(a). Partners' interests in partnership property has been described as a "tenancy in partnership." Ewing v. Caldwell, 243 N.C. 18, 23, 89 S.E.2d 774, 777 (1955). When title to the property is in the partnership name, it may be conveyed "out" by any partner in the partnership name. G.S. 59-40(a). In such cases, however, when the partner conveys partnership property "out" in his own name, he merely "passes the equitable interest of the partnership. . . ." G.S. 59-40(b).

In deciding whether the 21 May 1970 deed is in the partnership name, we must look to the 'four corners" of the document. Rouse v. Strickland, 260 N.C. 491, 133 S.E.2d 151 (1963); Hardy v. Edwards, 22 N.C. App. 276, 206 S.E.2d 316, cert. denied, 285 N.C. 659, 207 S.E.2d 753 (1974). Thus, the grantor's intended grantee

may be ascertained by reviewing the granting clause, ...


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