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Ward v. Ward

Filed: May 18, 1982.

BARBARA PORTER WARD
v.
VIRGIL VAUGHN WARD AND EUGENE MCKEITHAN



Appeal by plaintiff from Wood, Judge. Judgment entered 19 May 1981 in District Court, Columbus County. Heard in the Court of Appeals 27 April 1982.

Martin (Robert M.), Judge. Judges Vaughn and Arnold concur.

Martin

Plaintiff contends that the trial court erred in directing the verdicts for defendant Ward. Our Supreme Court in Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396, 398 (1971) stated the test for allowing a directed verdict:

On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. (Citation omitted.)

Considering plaintiff's second and third causes of action first, we find that the trial court properly granted defendant's motions for directed verdict.

It is well-settled in North Carolina that during the existence of a tenancy by the entirety, the husband has the absolute and exclusive right to the control, use, possession, rents, income and profits of the land. 2 R. Lee, N.C. Family Law ยง 115 (4th ed. 1980). The husband does not have to account to his wife for the rent and income received from the property. Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643 (1965). In the case at bar, as a matter of law defendant husband did not have to account to plaintiff for the rents received from the farmland owned as tenants by the entirety during the parties' marriage. Plaintiff testified as follows: "Virgil told me when we bought the farms that they were for our future. That while we were young we were going to clear the land and have it paid for so that when we got older that

would be our future." Considering this testimony in the light most favorable to plaintiff, it is insufficient to show an express or implied agreement that plaintiff is entitled to the rents received for the jointly owned property during the marriage. The husband, therefore, was legally entitled to those rents. Id. Thus, the trial court's entry of a directed verdict was proper.

In her third cause of action plaintiff sought one-half of the value of the stock in the Combined Insurance Company held in defendant's name. Plaintiff's only evidence was that the stock was acquired during the marriage and that they "went together and bought it." Considering this evidence in the light most favorable to plaintiff, as a matter of law the evidence is insufficient to justify a verdict for plaintiff. Kelly v. Harvester Co., supra.

Plaintiff in her first cause of action sought one-half of personal property acquired during the marriage or one-half of its value of $43,760.00. This property consisted primarily of farm equipment and household goods, and all the property was financed by Southeast PCA where both plaintiff and her husband had signed the notes. Plaintiff testified as follows:

The property was financed at the PCA and she and her husband both signed the Notes at the PCA. We both paid the loan and Notes off. The payments made on the farm equipment and household goods in 1978 were $1,103.09 on interest and $11,595.18 on principal. These payments were made on debts, Notes that she and her husband signed -- the debts were used to acquire money -- monies to purchase this personal property. During 1979 she and her husband paid $1,156.30 on interest and $6,567.97 on principal.

She paid off half of the money. During 1980 she paid half of $1,130.73 [interest] plus $7,869.90 [principal] to PCA. In addition she paid a total of half of $47,000.00 on the debts used to acquire equipment in 1980. Since her separation in 1978, the defendant has not given her any of that property.

After we were separated, he had me go to the PCA and to borrow -- sign to borrow, Nine Hundred Dollars to pay off part of the equipment, and I paid half of ...


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