Davis v. Bass

Decision Date17 September 1924
Docket Number67.
Citation124 S.E. 566,188 N.C. 200
PartiesDAVIS v. BASS ET AL.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Wilson County; Bond, Judge.

Action to cancel a deed and recover the property by Loumiza Davis against W. T. Bass, trustee, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Neither husband nor wife can convey an estate by entirety, without the other's assent, nor is it subject to lien of a docketed judgment, or debt of either, without other's consent.

On May 12, 1916, the plaintiff and her husband, P. A. Davis, being the owners of certain lands as tenants by the entirety executed a paper writing purporting to convey said lands to W. T. Bass, trustee, under the terms of which the trustee was to hold the property for the sole use of both the grantors during the natural life of P. A. Davis, provided he predecease his wife; but if the plaintiff predeceased her husband, then at her death the uses and trusts created were to cease, and all the property was to revert to P. A. Davis and be and remain his sole and separate property to all intents and purposes as fully and completely as if the plaintiff had predeceased her husband without the execution of said deed. But if the said P. A. Davis predeceased the plaintiff (which he did), the trustee was authorized and directed to dispose of all the property according to the wishes of P. A. Davis, as expressed in his last will and testament.

The execution of this deed was duly acknowledged by the grantors and the plaintiff's privy examination taken, but there was no compliance, or attempted compliance, with the provision of C. S. § 2515, requiring the probate officer, as a prerequisite to its validity, to certify in his certificate of probate that such contract was not unreasonable or injurious to the plaintiff.

The defendants are residuary legatees under the will of P. A Davis, and as such claim title to the property by virtue of the deed above mentioned. Plaintiff, on the other hand, widow of P. A. Davis, deceased, contends that said deed is void because not executed in accordance with the requirements of the statute, and that she is entitled to the property described therein by right of her survivorship. The case turns upon the validity or invalidity of this deed.

The trial court held the deed in question to be invalid, and rendered judgment for the plaintiff. Defendants appeal.

Connor & Hill, of Wilson, and Pou & Pou, of Raleigh, for appellants.

Bryce Little and W. A. Lucas, both of Wilson, for appellee.

STACY, J. (after stating the facts as above).

The question presented for decision is whether a conveyance made by husband and wife during coverture to a trustee for the use and benefit of the husband, of lands held by the entirety, is such a contract between a husband and wife, affecting the real estate or the capital of the personal estate of the wife, as comes under C. S. § 2515, requiring the probate officer, as a condition precedent to the validity of the conveyance, to certify in his certificate of probate that, at the time of its execution and the wife's privy examination, such contract was not unreasonable or injurious to her. The trial court held it to be such a contract, and that a failure to observe the requirements of the statute rendered it absolutely void. Wallin v. Rice, 170 N.C. 417, 87 S.E. 239. The appeal challenges the correctness of this ruling. A satisfactory disposition of the case would seem to call for an examination into the basic character of an estate held by a husband and wife as such, or as tenants by the entirety, as it is usually called. It is conceded that the deed in question was executed for the purpose of enabling the husband to deal with the property as his own, freed from his wife's interest therein.

When land is conveyed or devised to a husband and wife as such, they take the estate so conveyed or devised, as tenants by the entirety, and not as joint tenants, or tenants in common. Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L. R. A. 722, 23 Am. St. Rep. 57. This tenancy by the entirety takes its origin from the common law when husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. The estate rests upon the doctrine of the unity of person, and upon the death of one the whole belongs to the other, not solely by right of survivorship, but also by virtue of the grant which vested the entire estate in each grantee. Long v. Barnes, 87 N.C. 329; Bertles v. Nunan, 92 N.Y. 152, 44 Am. Rep.

361. These two individuals, by virtue of their marital relationship, acquire the entire estate, and each is deemed to be seized of the whole, and not of a moiety or any undivided portion thereof. They are seized of the whole, because at common law they were considered but one person; and the estate thus created has never been destroyed or changed by statute in North Carolina. Freeman v. Belfer, 173 N.C. 587, 92 S.E. 486, L. R. A. 1917E, 886. It still possesses here the same properties and incidents as at common law. Bynum v. Wicker, 141 N.C. 95, 53 S.E. 478, 115 Am. St. Rep. 675. The act abolishing survivorship in joint tenancies in fee (C. S. § 1735) does not apply to tenancies by the entirety. Motley v. Whitemore, 19 N.C. 537. A joint tenancy is distinguished by the four unities of time, title, interest, and possession (Moore v. Trust Co., 178 N.C. 124, 100 S.E. 269); and it has been held that in tenancies by the entirety, a fifth unity is added to the four common-law unities recognized in joint tenancies, to wit, unity of person. Topping v. Sadler, 50 N.C. 357.

"A conveyance to husband and wife creates neither a tenancy in common nor a joint tenancy. The estate of joint tenants is a unit made up of divisible parts; that of husband and wife is also a unit; but it is made up ofindivisible parts. In the first case there are several holders of different moieties or portions, and upon the death of either, the survivor takes a new estate. He acquires by survivorship the moiety of his deceased cotenant. In the last case, although there are two natural persons, they are but one person inlaw, and upon the death of either, the survivor takes no new estate. It is a mere change in the properties of the legal person holding, and not an alteration in the estate holden. The loss of an adjunct merely reduces thelegal personage holding the estate to an individuality identical with thenatural person. The whole estate continues in the survivor the same as it would continue in a corporation after the death of one of the corporators. 1 Dana, 244; 7 Yerger, 319. This has been the settled law for centuries. The distinction may seem a nice one, but it is founded upon the nature of marriage and the rights and incapacities which it establishes. Co. Lit. 6; 1 Thom. Coke, 853; 2 Bl. Com. 182." Lewis, C.J., in Stuckey v. Keefe, 26 Pa. 399.

It will be observed that the estate may be held by husband and wife as such, and not otherwise, though it is not necessary that they be so described. 13 R. C. L. 1108. A husband is a man who has a wife, and a wife is a woman who has a husband. There can be no husband without a wife, and there can be no wife without a husband. As members of the marriage state, the only capacity in which they may take an estate by the entirety, the one cannot exist without the other. The two, in law and in fact, constitute but one "husband and wife." 30 C.J. 562 et seq.; 13 R. C. L. 1114.

Chancellor Kent, in his Commentaries, describes this anomalous estate as follows:

"If an estate in land be given to the husband and wife, or a joint purchase be made by them during coverture, they are not properly joint tenants, nor tenants in common for they are but one person in law, and cannot take by moieties. They are both seized of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole."

And he cites Preston on Estates, which, with the authorities there collected, abundantly sustain his exposition of the law.

"This species of tenancy is sui generis, and arises from the unity of husband and wife. As between them there is but one owner, and that is neither the one nor the other, but both together, in their peculiar relationship to each other, constituting the proprietorship of the whole, and of every part and parcel thereof. There can be no partition during coverture, for this would imply a separate interest in each; and for the same reason neither can alien, without the consent of the other, any portion or interest therein; and hence the legal necessity results that the survivor must take the whole, for the estate being incapable of partition during the life of either, nothing could descend by the death of either. This consequence necessarily results from the nature of the estate, and the legal relation of the parties." Smith, J., in Ketchum v. Walsworth, 5 Wis. 102, 68 Am. Dec. 49.

Some of the properties and incidents of estates by the entirety may be summarized as follows:

1. In the eyes of the law an estate by the entirety is vested in one person, the husband and wife. These two individuals who constitute the one marital relation, are deemed to be seized of the entirety, per tout et non per my. Bruce v. Nicholson, 109 N.C. 204, 13 S.E. 790, 26 Am. St. Rep. 562. Only husband and wife, in the character as such, may be tenants by the entirety. Simons v. Bollinger, 154 Ind. 83, 56 N.E. 23, 48 L. R. A. 234. This estate, in its essential features and attributes, is dependent in legal contemplation upon the oneness of person of husband and wife. McKinnon v. Caulk, 167 N.C. 412, 83 S.E. 559, L. R. A. 1915C, 396.

2. Upon the death of one, either the husband or the wife, the whole estate belongs to...

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