27 N.C. 426 | N.C. | 1845
Ejectment. The plaintiff introduced a deed from the executors of William Cox to John Needham and his wife Susannah, the lessor of the plaintiff, bearing date 24 March, 1823, conveying in fee the land set forth in the declaration. A deed of trust was also produced, executed on the same day by the said John Needham and his wife Susannah to Hugh Maffitt, conveying the same lands; but as to this deed the said Susannah had never been privily examined. By the provisions of the deed of trust, Maffitt had power to sell the tract conveyed in several parcels, and the plaintiff showed, by deeds of conveyance, that the defendants held directly or by mesne conveyances from the said Maffitt, who had sold the tract according to his power in several parcels. It appeared that the defendants held these respective parcels under separate and distinct conveyances, though circumscribed by the lines of the original tract conveyed to the said Maffitt. The plaintiffs also showed that the defendants were separately in possession of three several parcels of the said tract so conveyed to them, and were so when this action was brought. And the plaintiff also showed that John Needham, above mentioned, had died some two or three years before the commencement of this suit.
Upon this evidence a verdict was returned for the plaintiff, subject to the opinion of the court whether the defendants could be joined in the same action and the plaintiff maintain this suit. The court being of opinion that the action could not be maintained, set the verdict aside and entered a judgment of nonsuit, from which the plaintiff (427) appealed. The deed from the executors of Cox, dated 24 March, 1823, conveyed the land to John Needham and Susannah, his wife, and their respective heirs. The husband and wife did not take interest in the land, either in joint tenancy or as tenants in common, but they took estates in fee, by entireties, and not by moieties. The husband alone *303 could not, by his own conveyance, divest the wife's estate or interest. So that, on her surviving him, she was entitled to the whole estate. Co. Lit., 187. Freestown v. Parrett, 5 Term, 652; Doe v. Wilson, 4 Barn. Alder., 303; 1 Roper, Husband and Wife, 51, 52. The deed to Maffitt did not convey Mrs. Needham's interest in the land, as she was not privily examined, as the law directs.
On the second question raised by the defendants, and on which the judge nonsuited the plaintiff, to wit, that the interest in the land claimed by the defendants was not a joint interest, but was a several and distinct interest in several distinct portions of the whole tract, as described in the declaration, the judge erred, we think, because the defendants pleaded jointly and were tried jointly. Love v. Wilbourn, ante, 344, settles the law upon this point of the case in favor of the plaintiff. The judgment must be reversed and a judgment rendered for the plaintiff against those defendants against whom the jury found.
PER CURIAM. Reversed and judgment for the plaintiff.
Cited: Hodges v. Little,
(428)
