Jones v. Smith

149 N.C. 318 | N.C. | 1908

AValicer, ■}.,

áfter stating the case: The plaintiffs, as husband- and wife, were seized of the land, including the timber, not properly as joint tenantsSmith or tenants in common, but as tenants by entirety, for being considered as one.person in law they can not take the estate in moities, but both are seized of the entirety, that is, per tout, el non per my, the consequence of which is that neither the husband nor the wife can dispose ,of any part without the assent of the other, but the whole must remain to the survivor. 8 Blk, 182. In 1 Washburn on Real Property (5 Ed.), p.706, it is said: “A still more peculiar joint estate is that which belongs to a husband and wife, where the same is conveyed to them as such. If a man and woman, tenants in common, marry, they will continue to hold in common. But if the estate is conveyed to them originally as husband and wife, they are neither tenants in common nor properly joint tenants, though having the right- of survivorship, but are what are called tenants by entirety. While such estates have, like a joint-tenancy, the quality of survivorship, they differ from that in this essential respect, that neither can convey his or her interest so as to affect the right of survivorship in the other. They are not seized, in the eye of the law, of moities, but of entire-ties. In' such cases, the survivor does not take as a new acquisition, but under the original limitation, his estate being simply freed from participation by the other; so that if, for instance, the wife survives and then dies, her heirs would take to the exclusion of the heirs of the husband. Nor can partition be made of the estate.” See also 11 Am. and Eng. Enc. (2 Ed.), p. 49; West v. R. R., 140 N. C., 620; Bynum v. Wicker, 141 N. C., 95; Bruce v. Nicholson, 109 N. C., 204; 2 Kent’s Com. 133. The nature, incidents and properties of this estate by entirety were not changed by the provisions of the constitution relating to married women. Long v. Barnes, 87 N. C., 329. As the plaintiffs were thus seized of the timber, its severance from the land by cutting it did not convert the estate in the trees, when severed, or in the lumber cut from the logs, into a tenancy in common, nor is the feme plaintiff, by reason of the severance, entitled to maintain this action for partition. If she could have enjoined the husband from cutting the timber, under the principle stated in Bynum v. Wicker, supra, she is certainly not entitled to have a partition of the lumber, into which the timber had been converted, no more than she would have been entitled to partition of the land or the trees standing or growing thereon. This is the only question before us, as the feme plaintiff insisted upon her legal right to partition as alleged and asserted in -her petition.

The intimation of the court was correct, and therefore the nonsuit, to which the plaintiff submitted in deference thereto, must stand. It may he that the present state of the law as to married women, under the constitution and statutes and a wise public policy, call for a change in the incidents and properties of this anomalous estate (tenancy hy entirety), so that it may he turned into a tenancy in common, but this is a question which addresses itself to the legislature and not to us.

No error.