*3 MORRIS, Chief Judge.

[1] State; This i.e. case whether presents innocent question wife can recover under an in of first impression this issued her husband insuring property surance by fire was when the loss occa them tenants husband. burning the intentional sioned law application The answer must be governed entirety as well as relating provisions to tenancies insurance. and incidents estate of hus- properties peculiar Bass, concisely Davis v. and wife were set N.C. band out *4 (1924). 200, 124 S.E. 566 Because decision rests in measure large necessary we summarize Bass, application principles, of these by Stacy in Davis v. supra. was said Chief Justice what alone, by joinder, 7. A husband without the wife’s lease coverture, he is is valid because entitled to the during income, increase or usufruct of the dur- possession, . . . joint lives. ing their conveyed a are

8. an is to man and woman who Where estate wife, intermarry, as husband and but who afterwards moieties, by they will they continue to hold originally took Hence, marriage. after the there said estate moieties husband and wife which prevents in the relation of nothing and in- originally holding thereafter their taking them from common, . . . they desire. as in so inten- terests tenants conveyance may a be made husband and appearing, tion COURT OF v. Insurance Co. common; they as otherwise will take wife tenants but . . . entirety survivorship. with destroys unity 9. An wife, husband and absolute divorce entirety an and therefore converts estate into . tenancy in . . common. husband is an possession

11.While entitled to the held and profits estate to take the rents coverture, immunity said arising during therefrom with execution, yet from attachment sale under pro- estate or C.S., 1667, alimony ceeding for without divorce under may subjected usufruct of the be to the payment of an award wife’s for the reasonable subsistence and that of children fees marriage, together of the with counsel as Laws, . . . by ch. Public 1921. allowed 12. . . . party partition. Neither entitled to wife, has been held It action husband and volving possession entirety, title or to lands held will not be barred the statute of limitations to one unless it bars both. [Citation omitted.]

14. A sale husband pro- division of the Co., entirety. ceeds ends an Moore v. Trust estate N.C., 118. But it where is made otherwise sale money. dies one before division of purchase [Citation omitted.] tenancy by entirety may 15. A in lands exist whether the fee, life, years, be in for or for same whether the (30 reversion, C.J., 566);

be in or remainder possession, but jurisdiction is held there can be no estate entirety in personal property. [Citation omitted.] conveyed 16. Where land is or devised a husband and wife lives, during term of their natural during survivor, fee, life with remainder their heirs in said *5 wife, case, Shelley’s husband and under the rule in a fee- take entirety as simple tenants the in the so conveyed or devised. [Citation omitted.] 155 OF COURT Co.

Lovell v. Insurance wife, 17. devises husband and above rules apply The convey husband and wife. and land to also to contracts N.C., They apply v. likewise Stamper Stamper, wife their natural “during or devise to and gift husband lives.” omitted.] [Citation 206-209, 124 569-571.

188 N.C. S.E. at at 578, Co., 242 89 S.E. 2d 122 In v. Insurance Carter N.C. (1955), the was determine of ownership the asked to the Court and his of a fire insurance Plaintiff wife policy. proceeds owned entirety, they were living as tenants the but the was issued and at the at the time the separate apart husband was occasioning the loss. Plaintiff time the fire occurred insurance in his property, applied of the for the possession only, made on name the therefor. He demand paid premium $4,000. proceeds entire of After company the insurance for the fire, plaintiff, wife an absolute divorce from the obtained company pro- for one-half the against made claim insurance refused, and brought husband action ceeds. Both demands were which, all parties, insurance with consent against company, liability. was from proceeds dicharged into court and paid allowed aver substituted defendant and was then as money deposit. on The Court held her claim for one-half to one-half because divorce. proceeds she entitled any insurance held that In that conclusion the Court reaching tenant inured to benefit of interest of one other, saying: an in- husband had

It be conceded that of which he his wife interest the property surable However, since the entirety. as were tenants seized husband was an inseparable part interest proprietary wife, and his his unity by him single-entity title held the whole the property interest ran to insurable We entire conclude covered the estate. omitted.] [Citations written and the loss benefits entire estate as thereby created inured benefit of added.) (Emphasis both husband wife. 580, v. Forsyth County 124. See S.E. 2d at also 242 N.C. at (1968). Plemmons, 2d 97 163 S.E. App. 2 N.C. *6 156 COURT OF APPEALS

Lovell v. Insurance Co. entirety by Since neither in an the can insure tenant estate moiety apart her as the estate separate his or interest from by them as an the two of indivisible estate without the owned entirety, each inuring surance the benefit of the it follows that any accept tenant must as act of both of them act of the other the The fact that the husband was named in- affecting estate. the consequence. sured of no are The interests the husband nonseparable, exists, generally

where this courts hold inno situation that the policy following cent insured recover an inten not insured part tional act on the one of the tenants which would See require payment otherwise for loss to the insured. (1969). Rockingham 24 A.L.R. 450 In Annot. 3d Mutual Insurance — Co., Hummel, —, (1979), Va. 2d 774 v. 250 S.E. the Court recovery refused an innocent wife whose husband had inten tionally burned owned as them tenants the entire ty and the were named insureds. was two The brought action insurer funds had paid to recover loss couple on the had claimed. The trial court sustained the wife’s demurrer but as The to the husband. held continued action Court that insurer, joint had a refrain defrauding two from obligation innocent, entirely even wife was she though was en The proceeds. to share in the insurance Court ap titled cited with Milwaukee, Klemens v. 8 Badger Mututal Insurance Co. proval 565, (1959), Wis. 2d 99 N.W. 2d 865 a case with the same holding facts, Vasilion, v. 192 Va. 66 on almost identical Vasilion (1951), 2d 599 S.E. where the held neither in an Court tenant act, could sever his the estate own holding legal subject its interest matter of joint was and not severable. See also Mele v. policy All-Star In (E.D.Pa. 1978). 453 surance F. 1338 Corp., Supp. Co., A opinion Matyuf v. Phoenix well-reasoned Insurance (Pa.) (1933) D. & C. 2d 351 until Insurance [unreported 1962]. Julia, wife, has issued to Frank T. Company Matyuf and his insuring against of insurance fire a policy loss building entirety. thirty days them tenants Less than after issued, destroyed building a fire set Matyuf, day Frank had that purchased who additional his own name without knowledge consent of his wife. The wife was completely innocent of wrongdoing with respect COURT OF Insurance Co.

Lovell v. Matyuf Julia it. Frank and fire knew about nothing there coverage. suit the insurance to recover brought *7 policy in the before language identical language to contained us; be liable fire or other i.e.. “This shall not for loss Company caused, directly indirectly, in or policy insured this against perils (i) use all means to . . . the insured to reasonable by: neglect of loss, . and . .” and at after preserve save and the property added hereto this provided writing Company in “Unless otherwise (a) is in- while the hazard occurring be liable for loss shall not in- by any knowledge of the creased means within the control or sured.” building willful of the recognized burning

The Court that the as well as insurer but against was a fraud the wife against alone, recovery by for ex- held “to allow or to the that house, she is upon ground value of one-half of the tent loss, be to be indemnified her would substitute entitled to for made, which was in of the one for place another contract indivisible entireties.” protect ownership insurance to (Pa.) D. & 2d further held that the effect of C. at The Court as use all means save neglect to reasonable to provisions aof fire was to property impose upon and in event preserve duty use all means to jointly the reasonable the tenants became event of fire so that each preserve failure, only any, for his to so act but also own responsible the failure to act the cotenant. responsible for became Matyuf if either of the We with the Court agree “fraudulently good owing faith violated the tenants sured, . . . such chargeable are with affected viola- both tion, . . recovery. as an . operating the extent of the obstacle joint . . intimately together . are connected tenants Plaintiffs as an being each seized [sic], of them entireties whole, either, possession when the physical indivisible therein the holding representing property, control of other; (Pa.) 361-362. . . .” 27 D. & C. 2d at husband, may her she have an action against While recover her loss from defendant insurer. cannot ^[2] Since the insurer has no liability plaintiff, had debt owed to the assignment to take an of the COURT OF APPEALS Lovell v. Insurance Co. Savings Loan and initiate foreclosure proceedings upon default. The policy provides: (or trustee)

Whenever this shall Company pay mortgagee that, any sum for loss under this and shall claim as to owners, existed, the mortgagor liability or no therefor shall, Company to the extent of such payment, be thereupon all legally subrogated to rights party to whom such made, shall payment under all securities held as collateral debt, to the mortgage at its option pay to the mort- (or trustee) gagee the whole due principal grow or to due on interest, the mortgage with and shall thereupon receive a full assignment transfer of the and of all mortgage such securities; other but no subrogation shall impair the right of (or trustee) his, the mortgagee to recover the full amount of claim. her or their *8 The above Mortgage Clause NOT apply personal DOES

property. Insurer’s payment to Savings Loan was made reason of its obligation the contract of insurance. It did not affect the outstanding indebtedness of and her husband. Their debt was not extinguished, and under the specific policy provisions, the insurer is subrogated to the rights the mortgagee. ^[3] Plaintiff argues her brief that notice of the foreclosure notice, hearing before the Clerk was improper. The 8 dated 1978, December notified her that a hearing would be had in the (rather 1979) Clerk’s office 3 January than at 11:00 o’clock a.m., and further notified her that the sale was scheduled for 25 January 1979. 45-21.16(a)

G.S. requires that notice of shall hearing be given to

(b)(3)Every record owner of the real estate whose interest of record in county where the real property is located at the time of giving notice. The term “record owner” means any person owning present or future interest of record in the real property which interest would be affected foreclosure proceeding, but does not mean or include the trustee in a deed of trust or the owner or holder of a mort- OF COURT Insurance Co.

Lovell v. lien, trust, or materialman’s mechanic’s or deed gage, property. in the real security interest lien or other (c) provides: Section

(c) in a manner and shall state writing shall Notice notice entitled to reasonably party calculated to make the following: aware of the

(1) being security interest The real particular foreclosed, necessary such a description with date, original including the identify property, the real amount, security instrument. page book (2) security and address of the holder of The name holder, instrument, his original if different from the name and address.

(3) the default claimed. The nature of (4) case, fact, the secured if such be the The maturity has of the debt. creditor accelerated (5) indebtedness Any right pay of the debtor to is permitted. the default such cure (6) 359, Laws c. s. by Section Repealed served) (or (7) ap- party other The of the debtor date and on a clerk court at time before the pear afforded the he shall be at which specified, appearance why the foreclosure show cause as opportunity shall contain allowed to be held. notice should not be *9 not intend to contest if the debtor does that statement default, does not of the debtor allegations the creditor’s at- his failure to hearing at that appear have to the pay his the will not affect hearing tend the sale, or thereby prevent proposed debtedness sale, elect do so. actual should he attend the consummated, (8) pur- if That the foreclosure sale will of real estate possession chaser be entitled to debtor, deed, his delivery of date of of can then be evicted. possession, still in (9) mort- should the trustee or keep That debtor that he can in of his address so gagee writing notified COURT OF Lovell v. Insurance Co. mailed copies of the notice of foreclosure setting forth held, the terms under which the sale will be and notice any postponements of resales.

(10) If the notice hearing intended to serve also as a sale, notice such additional as is information set forth in G.S. 45-21.16A.

It is quite clear that notice sufficient make plaintiff the requirements aware of all except obviously that an inadver- tent error placed date as rather than an error notices, letters, which is made in frequently and other documents obvious, in and January year. December each It seems however, A plaintiff could not have been telephone misled. call to the office have certainly any Clerk’s would cleared up con- fusion. Nor that she does contend was not made aware of requirement other of the statute. Despite the fact that question properly should be raised the foreclosure proceeding, sufficiently we hold that notice was not defective as to set aside the proceedings.

Affirmed.

Judge concurs. PARKER HILL dissents.

Judge

Judge dissenting. HILL

I must dissent this case first in our I impression Court. do so because facts herein are distinguishable from those in majority cases cited of this Court and because simple demands it. equity

At the time of the fire in a living state of her husband and separation from subsequent brought thereto action for divorce from him. The arsonist husband burned the wife, jointly dwelling for spite, against retaliation his and has been convicted in the criminal court for such wrongdoing. These present facts marked difference from the cases cited majority where the spouse arsonist the premises burned collect from company the other cotenant —and *10 spouse was innocent simply of wrongdoing. COURT OF APPEALS Co. v. Insurance

I have no quarrel premise with the that in cases where the purpose the arson is a recovery directed toward from an in- joint surance company, tenants have mutual obligation to preserve jointly held from loss fire. Such was not Furthermore, intent arsonist the instant case. there is no evidence in the record that not she doing all could to preserve the property.

Had the been a stranger, there have would been no arsonist liability question the insurance carrier. Similarly, in this case where the husband and wife were like strangers to each other, I cannot see that a record severance of the rela- marriage tionship divorce decree should be a to prerequisite obtaining coverage. insurance

In this case the which the dwelling was con- structed was given the wife’s parents to husband and wife jointly. The insurance carrier chose to pay the balance of the note secured the deed of trust on the real the mort- rather, gagee; buy chose to the note and foreclose the deed of trust which would further add the loss suffered It wife. is argued that the insurance contract I provided for this. do not agree the facts of this case. The mortgage indebtedness should be paid set out below. proceeds anof cash. Cash personal

property and is separable.

I would hold under the circumstances of this case that one- half of the balance due under the note mortgagee should be paid as the husband’s share note one-half of the total fire should loss be paid mortgagee the wife as their terests appear. The carrier then would proceed able to against the its husband-wrongdoer recover loss. issue,

Where and law equity have merged are at equity ought prevail.