Bank Of Greenville v. Gornto
| Decision Date | 26 February 1913 |
| Court | North Carolina Supreme Court |
| Parties | BANK OF GREENVILLE . v. GORNTO. |
1. Husband and Wife (§ 14*)—Estates by Entireties—Rights of Parties.
The rights of husband and wife owning real estate by entireties are determined by the common law, under which the possession during their joint lives rests in the husband, and, subject to the limitation that neither can convey during their joint lives so as to defeat the right of the survivor to the whole estate, the husband may lease the property, which lease will be good against the wife during coverture and will fail only in the event of her surviving him.
[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 71-89; Dec. Dig. § 14.*]
2. Husband and Wife (§ 14*)—Estates by Entireties—Rights of Parties.
Const, art. 10, § 6, declaring that the property of any female acquired before marriage and all property to which she may after marriage become entitled shall be her sole and separate property, does not change the rights of husband and wife to real estate owned by entireties.
[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 71-89; Dec. Dig. § 14.*]
3. Husband and Wife (§ 14*)—Estate by Entirety—Lease—Rights of Purchaser.
Where husband and wife owning real estate by entireties executed a lease which was duly recorded without the privy of examination of the wife, and the husband and wife there-after duly conveyed the real estate to a purchaser, the purchaser occupied no better position than the husband, and, where he had recognized the right of the lessee to exercise the privilege of renewal, the purchaser took subject to such right; the lessee having actual possession.
[Ed. Note.—For other cases, see Husband and Wife, Cent Dig. §§ 71-89; Dec. Dig. § 14.2-*]
4. Landlord and Tenant (§ 83*)—Renewal Clause—Validity—Effect.
A renewal clause in a lease for a fixed term, "with the privilege of ten years thereafter, on the same terms, " is sufficient in form and a valid part of the lease.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 263, 264, 266-278, 295; Dec. Dig. § 83.*]
5. Landlord and Tenant (§ 83*)—Renewal Clause—Covenants.
Covenants to renew a lease are not personal, and they run with the land, and are binding on the legal successors of the lessee as well as the lessor.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 263, 264, 266-278, 295; Dec. Dig. § 83.*]
Appeal from Superior Court, Pitt County; Cline, Judge.
Action by the Bank of Greenville against George Gornto. From a judgment for defendant, plaintiff appeals. Affirmed.
The action is brought to recover possession of a lot and building conveyed by J. A. Brady and wife, Georgia, to plaintiff on April. 29, 1912, by deed recorded May 6, 1912. The lot was leased January 8, 1910, by Brady and wife to Gornto for two years, commencing February 1, 1910, "with the privilege of 10 years thereafter, on the same terms, " etc., recorded April 2, 1912. The privy examination of Mrs. Brady was never taken to the lease. All the conditions of the lease have been complied with by the lessee, and he has given due notice in apt time that he will continue the lease for 10 years. It is admitted that the property was conveyed by a deed to Brady and his wife and that they hold an estate by entireties. His honor rendered judgment for defendant, and the plaintiff appealed.
Jarvis & Blow and Harding & Pierce, all of Greenville, for appellant.
Harry Skinner and Albion Dunn, both of Greenville, for appellee.
The principal question presented by this appeal is the validity of the lease for 10 years made by Brady to defendant without the privy examination of Brady's wife. As to her, of course, the lease is void.
As Brady and his wife held, not a's tenants in common or joint tenants, but by entireties, their rights must be determined by the rules of the common law, according to which the possession of the property during their joint lives rests in the husband, as it does when the wife is sole seised. Neither can convey during their joint lives so as to bind the other or defeat the right of the survivor to the whole estate. Subject to the limitation above named, the husband has the same rights in it which are incident to his own property. By the overwhelming weight of authority the husband has the right to lease the property so conveyed to him and his wife, which lease will be good against the wife during coverture and will fail only in the event of her surviving him. Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824, 55 Am. Rep. 462; 15 Am. & Eng. 849; Washburn v. Burns, 34 N. J. Law, 18; Barber v. Harris, 15 Wend. (N. Y.) 615; Jackson v. McConnell, 19 Wend. (N. Y.) 175, 32 Am. Dec. 439; Fairchild v. Chastelleux, 1 Pa. 176, 44 Am. Dec. 117; Pollock v. Kelly, 6 Ir. C. L. 367-375; Godfrey v. Bryan, 14 Ch. Div. 516. In this state our decisions...
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...from enjoying it, discharged from his debts and engagements.' 2 Kent's Com. 133; Bruce v. Nicholson, 109 N.C. 204." In Greenville v. Gornto, 161 N.C. 343, 77 S.E. 223, lease for ten years made by the husband was held to be valid, the court saying: "By the overwhelming weight of authority th......
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