Bynum v. Wicker

• Decision Date: 10 April 1906
• Citation: 53 S.E. 478,141 N. C. 95
• Court: North Carolina Supreme Court
• Parties: BYNUM. v. WICKER et al.

53 S.E. 478

(141 N. C. 95)

BYNUM.

v.WICKER et al.

Supreme Court of North Carolina.

April 10, 1906.

1. Life Estates—Rights of Life Tenant-Cutting Timber.

While a husband may, by a deed in which his wife does not join, convey an estate by entireties, so as to entitle the grantee to hold during the husband's life, such deed does not give the grantee a right to cut timber on the land.

[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Life Estates, § 32.]

2. Same—Rights Conveyed—Estoppel.

Where a husband, by deed in which the wife does not join, conveys an estate held by entireties, both he and his wife are estopped from interfering with the possession of the premises during their joint lives.

[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Husband and Wife, § 82.]

Appeal from Superior Court, Moore County; Fred Moore, Judge.

Action by T. M. Bynum against J. M. Wicker and others. From the judgment for defendants, plaintiff appeals. Reversed.

U. L. Spence, for appellant.

Seawell & Mclver, for appellees.

CLARK, C. J. Edward Fields and wife were tenants by entirety of the tract in question. Edward Fields, without the joinder of his wife, mortgaged the land to John R. Lane. The land was sold under the power of sale in the mortgage, and the plaintiff holds by mesne conveyances from the purchaser at such sale. This is a proceeding for an injunction against the defendants, who are the agents of Edward Fields and his wife, to prevent their cutting the timber on said land.

This estate by entirety is an anomaly, and it is perhaps an oversight that the Legislature has not changed it into a co-tenancy, as has been done in so many states. This not having been done, it still possesses here the same properties and incidents as at common law. Long v. Barnes, 87 N. C. 333; West v. Railroad (at this term) 53 S. E. 477. At common law "the fruits accruing during their joint lives would belong to the husband." Simonton v. Cornelius, 98 N. C. 437, 4 S. E. 40. Hence the husband could mortgage or convey it during the term of their joint lives—that is, the right to receive the rents and profits—but neither could incumber it or convey it, so as to destroy the right of the other, if survivor, to receive the land itself unimpaired. "He cannot alien or incumber it, if it be a freehold estate, so as to prevent the wife or her heirs, after his death, from enjoying it, discharged from his debts and engagements." 2 Kent's Com. 133; Bruce v. Nicholson, 109 N. C. 204, 13 S. E. 790, ...