Janey HARRIS
v.
Dewey PARKER et al.
No. 7230SC538.
Court of Appeals of North Carolina.
March 28, 1973.*123 Louis Wilson, Franklin, and Stedman Hines, Bryson City, for plaintiff-appellee.
Hall, Holt & Haire by Ben Oshel Bridgers, Sylva, for defendant-appellants.
*124 PARKER, Judge.
Determinative of the rights of the parties is whether plaintiff's marriage to Ben H. Harris was dissolved by an absolute divorce. If it was not, then upon Harris's death in 1970 plaintiff became sole owner of the property as surviving tenant by the entireties, and neither the 1955 conveyance to defendants, in which plaintiff did not join, nor defendants' possession of the property under that conveyance, could serve to defeat plaintiff's right of survivorship.
The common-law estate by the entireties remains unchanged by statute in North Carolina. Combs v. Combs, 273 N.C. 462, 160 S.E.2d 308. "One of the incidents of an estate by the entireties is that neither the husband nor the wife can defeat the other's right of survivorship in the land by a conveyance or encumbrance to a third party." Council v. Pitt, 272 N.C. 222, 158 S.E.2d 34. However, "[d]uring the existence of the tenancy by the entirety, the husband has the absolute and exclusive right to the control, use, possession, rents, income and profits of the lands, and he does not have to account to his wife for the rents and income received from the property." Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643. Therefore, during the marriage the husband may convey or encumber the property to the extent of his common-law interest therein, including his rights to the rents, profits, and usufruct of the property, Bank v. Hall, 201 N.C. 787, 161 S.E. 484; Dorsey v. Kirkland, 177 N.C. 520, 99 S.E. 407, and if he survive, his grantee under a warranty deed may even acquire title by way of estoppel. Davis v. Bass, 188 N.C. 200, 124 S.E. 566. Applying these well-established principles to the facts of this case, it is apparent that so long as plaintiff's marriage to Ben H. Harris remained undissolved by death or by absolute divorce, defendants' possession of the property under the 1955 deed could not be adverse to plaintiff's survivorship rights nor could that deed serve to defeat those rights.
In entering summary judgment for plaintiff, the trial court found that "Janey Harris never obtained any divorce from Ben Harris and said Ben Harris never obtained any divorce from Janey Harris." Had the trial court been the trier of the facts, this finding would have ended the matter, for the judgment entered correctly applies the law arising from such a factual determination. Plaintiff's motion for summary judgment, however, did not make the trial judge the trier of the facts. The motion presented to the trial court only the question whether there was no genuine issue as to any material fact. As we view this case, the crucial question presented to this Court by this appeal is whether the trial court was correct under the circumstances of this case in ruling on plaintiff's motion for summary judgment and in determining there was no genuine issue as to any material fact without first affording defendants an adequate opportunity for completing the discovery process which obtaining answers to their interrogatories would have permitted. In our opinion, and we so hold, the trial court committed error in granting summary judgment under the circumstances of this case without first affording defendants an adequate opportunity to complete their discovery proceedings which had been initiated by the filing of interrogatories.
The trial court may have granted summary judgment without first requiring answers to the interrogatories on the theory that no answer to any of the questions therein could have been directly admissible and relevant to raise a genuine issue as to any material fact. The scope of discovery authorized by our Rules of Civil Procedure, however, is not so limited. G.S. § 1A-1, Rule 33, provides (in part) that "[i]nterrogatories may relate to any matters which can be inquired into under Rule 26(b)," and Rule 26(b) provides that "[i]t is not ground for objection that the testimony will be inadmissible *125 at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence." We make no decision on this appeal as to whether defendants are entitled to an answer to each individual question contained in their interrogatories, since the trial court made no rulings in that regard, but we think it apparent that at least some of the information sought "appears reasonably calculated to lead to the discovery of admissible evidence" concerning the crucial fact of divorce or no divorce in this case.
Plaintiff's affidavit indicates that she and Ben Harris separated in 1921 and remained separate and apart until Ben's death in 1970, a period of almost half a century. During at least a part of that period plaintiff was a nonresident of North Carolina, though exactly where she has resided is not disclosed. Investigation as to whether a person has or has not obtained a divorce throughout such a long period of time is at best a formidable task. If it is not known where from time to time the person resided, any significant investigation becomes well-nigh impossible. Obtaining answers to their interrogatories would greatly facilitate defendants' search. Even though their search may produce no evidence favorable to their cause, they are nevertheless entitled to a fair opportunity to try. The entry of the summary judgment under the circumstances of this case denied them that opportunity.
While we rest our decision on the grounds above stated, we note that the presumption recognized in this State in favor of the validity of a second marriage, Chalmers v. Womack, 269 N.C. 433, 152 S.E.2d 505; Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871; Annotation, 14 A.L.R. 2d 7, may have been alone sufficient to require submission of this case to the jury.
Reversed and remanded.
VAUGHN and GRAHAM, JJ., concur.