
102 S.E.2d 868 (1958)
248 N.C. 194
Helen W. SMITH
v.
John B. SMITH and Minnie M. Smith.
No. 168.
Supreme Court of North Carolina.
April 9, 1958.
*870 Max L. Childers, Mt. Holly, for petitioner, appellant.
Ernest R. Warren, Julius T. Sanders, Gastonia, for defendants, appellees.
HIGGINS, Justice.
The petitioner initiated this special proceeding for the purpose of having a described parcel of land sold for partition between her and the respondent, John B. Smith, alleged to be tenants in common, "subject to the life estate in the four-room house and lot * * * which life estate belongs to Minnie M. Smith."
The respondents, by answer, denied the tenancy in common and alleged the petitioner had no interest in the land which descended to the respondent, John B. Smith, by inheritance from his father. The respondents alleged that the name of Helen W. Smith was inserted in the deed from Minnie M. Smith by mistake. The respondents admitted, however, that Minnie M. Smith has a life estate in the land. In the further answer and defense, the respondents pleaded other matters not material to a decision of the case.
The parties stipulated: "By deed dated September 15, 1949, Minnie M. Smith, widow, conveyed a portion of the lands originally owned by Benjamin Franklin Smith, being the portion involved in this controversy, to J. B. Smith and wife, Helen W. Smith * * *" It is further stipulated: "Said deed states a consideration of `$1.00, Love and Affection, Deed of Gift.' * * * Said deed further states after the names of J. B. Smith and wife, Helen W. Smith, `creating an estate by entirety.'"
The deeds referred to in the stipulations are not in the record and there is nothing to indicate they were introduced in evidence. The only evidence actually introduced was the testimony of the petitioner that she and the respondent, J. B. Smith, were married on August 6, 1949, and that she thereafter turned over to her husband certain sums of money which were used in drilling a well and making repairs on the house. "John B. Smith did not ever tell me my name had got on that deed by mistake. It was my understanding that was the way the deed was supposed to be made, otherwise I wouldn't have married him, and that is the reason I put my money in the property."
It may be noted the rights of the petitioner to an accounting for improvements put upon land under the belief she held title is not an issue raised by the pleadings in this case. The petitioner's evidence does not bear on the issue whether the petitioner and John B. Smith are tenants in common. It may be noted also that if the petitioner's contention is correct that the deed created an estate by entirety, a divorce would be necessary to convert such estate into a tenancy in common. There is no evidence and no stipulation of a divorce. The stipulation does not go beyond the fact that she remarried. Therefore, the court's judgment, wihch is excepted to, must stand or fall on the stipulations.
*871 The stipulations constitute an agreed statement of facts in the cause. Decision must be based on the facts agreed. The court is not permitted to infer other, or additional facts. Sparrow v. American Fire & Casualty Co., 243 N.C. 60, 89 S.E.2d 800; U Drive It Auto Co. v. Atlantic Fire Ins. Co., 239 N.C. 416, 80 S.E.2d 35.
The court decided (1) the land involved was inherited by John B. Smith from his father; (2) the deed from Minnie M. Smith to J. B. Smith and wife, Helen W. Smith, which states it creates an estate by entirety does not do so; and (3) the proceeding is prematurely instituted as to that part of the land in which Minnie M. Smith holds a life estate.
The stipulations are sufficient to show that in 1906 Benjamin Franklin Smith acquired a tract of land and at his death he left a widow, Minnie M. Smith, and two sons, Frank Rhyne Smith and the respondent, John B. Smith, as his heirs at law. Frank Rhyne Smith conveyed all his interest to his mother, Minnie M. Smith. The result was she and John B. Smith held the Benjamin Franklin Smith lands as tenants in common, subject to her dower interest. On September 15, 1949, John B. Smith and wife, Helen, by deed, conveyed a portion of the lands to Minnie M. Smith. The deed recites "a consideration of $1.00, Love and Affection, Deed of Gift." The stipulation contains no description of the land, but refers to the registry where the deed is recorded. On the same day and for the same stated consideration, Minnie M. Smith conveyed to John B. Smith and wife, Helen W. Smith, the lands in controversy. "Said deed further states after the names of John B. Smith and wife, Helen W. Smith `creating an estate by entirety.'" It must be noted the stipulation says Minnie M. Smith conveyed the land in controversy to John B. Smith and wife, Helen W. Smith. The court held John B. Smith inherited it from his father. The court held, also, that Minnie's deed did not convey an estate by entirety to Helen. What estate, if any, it did convey is not decided. The crucial question is, did it create a tenancy in common? Such a tenancy is the foundation upon which partition is based. G.S. §§ 46-1 and 46-3; Lockleair v. Martin, 245 N.C. 378, 96 S.E.2d 24; Murphy v. Smith, 235 N.C. 455, 70 S.E.2d 697; Gregory v. Pinnix, 158 N.C. 147, 73 S.E. 814.
We apprehend the difficulty in the case arose by reason of the attempt on the part of the court to treat the deeds of September 15, 1949, as a voluntary partition of the property held by Minnie M. Smith and John B. Smith as tenants in common. What, if anything, the deeds show beyond the stipulated facts is unknown. Neither the trial court nor this is permitted to guess. The facts stipulated are insufficient to show the deeds were intended by the parties to be a voluntary partition of their lands. It seems that in order to show the deeds were executed pursuant to a scheme or plan to divide lands held by tenancy in common, there must be evidence to that effect on the face of the deeds, or the intent must otherwise appear. Morton v. Blades Lumber Co., 154 N.C. 278, 70 S.E. 467.
If it should be determined the deeds are partition deeds, the petitioner would derive no title. "Accordingly, a deed made by one tenant in common to a cotenant and the latter's spouse in partitioning inherited land or land held as a tenancy in common, does not create an estate by the entirety or enlarge the marital rights of the spouse as previously fixed by law." Elledge v. Welch, 238 N.C. 61, 76 S.E.2d 340, 344; Sutton v. Sutton, 236 N.C. 495, 73 S.E.2d 157. Consequently, if the deed to John B. Smith and Helen W. Smith was a partition deed, it makes no difference whether the name of Helen W. Smith was inserted by design or by mistake. In neither event did she acquire any title.
The trial court erroneously held the partition proceeding was prematurely brought by reason of the outstanding life *872 estate of Minnie M. Smith in a part of the land. G.S. § 46-23 provides: "The existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, * * *". Bunting v. Cobb, 234 N.C. 132, 66 S.E.2d 661; Moore v. Baker, 222 N.C. 736, 24 S.E. 2d 749; Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86.
The petitioner's exception to the judgment is well taken. The facts before the court were insufficient to sustain the judgment for the reasons herein pointed out. The cause is remanded to the Superior Court of Gaston County for further hearing.
Remanded.
