Edwards v. Arnold, 611

• Decision Date: 12 June 1959
• Docket Number: No. 611,611
• Citation: 250 N.C. 500,109 S.E.2d 205
• Parties: R. E. EDWARDS and wife, Annie Belle Edwards, v. Floyd J. ARNOLD and wife, Mary N. Arnold, and Bladen County.
• Court: North Carolina Supreme Court

Page 205

109 S.E.2d 205

250 N.C. 500

R. E. EDWARDS and wife, Annie Belle Edwards, v. Floyd J. ARNOLD and wife, Mary N. Arnold, and Bladen County.

No. 611

Supreme Court of North Carolina.

June 12, 1959

Clark, Clark & Grady, Elizabethtown, for plaintiffs.

Leon D. Smith and Hester & Hester, Elizabethtown, for defendants.

BOBBITT, Justice.

The judgment recites that plaintiffs' motion 'for judgment of nonsuit on defendants' cross action' was denied at the close of defendants' evidence but allowed 'at the close of all the evidence.' Affirmative defenses, not a cross action, were pleaded by defendants. In view of the quoted adjudications, this recital in the judgment would seem only to reflect a ruling by the court that defendants' evidence was not sufficient to require submission of an issue relating to defendants' alleged adverse possession under color of title for more than seven years. Since, for reasons stated below, the cause is remanded for trial de novo, we do not discuss defendants' contention that such issue should have been submitted.

Now we consider the legal effect, if any, of the tax foreclosure proceeding, the principal subject of controversy.

G.S. § 105-392(a) provides, in part, that the certificate of the tax collector, when docketed in the manner prescribed 'shall constitute a valid judgment against said property, with the priority hereinbefore provided for tax liens, which said judgment, except as herein expressly provided, shall have the same force and effect as a duly rendered judgment of the superior court directing sale of said property for the satisfaction of the tax lien, * * *' G.S. § 105-392(c) provides, in part, that 'execution shall be issued * * * in the same manner as executions are issued upon other judgments of the superior court, and said property shall be sold by the sheriff in the same manner as other property is sold under execution: Provided, that no debtor's exemption shall be allowed; * * *'

According to the deed introduced by plaintiffs, the title to the subject property vested in R. E. Edwards and wife, Annie Belle Edwards, as tenants by the entirety. Davis v. Bass, 188 N.C. 200, 124 S.E. 566, and Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490, where the distinctive properties and incidents of an estate by the entirety are set forth.

In such estate, the husband and wife are deemed to be seized of the entirety, per tout et non per my. The entire estate is a unit. Neither husband nor wife owns a divisible part. Davis v. Bass, supra; Gray v. Bailey, 117 N.C. 439, 23 S.E. 318.

'Lands held by husband and wife as tenants by the entirety are not subject to levy under execution on a judgment rendered against either the husband or the wife alone, nor can the interest of either be thus sold, because the right of survivorship is merely an incident of the estate, and does not constitute a remainder, either vested or contingent, * * *' Johnson v. Leavitt, supra [188 N.C. 682, 125 S.E. 492]. 'The possibility that the husband might survive his wife, and thus become the sole owner of the property, was not the subject of sale or lien. This did not constitute or create any present estate, legal or equitable, any more than a contingent remainder, or any other mere prospective possibility.' Bruce v. Nicholson, 109 N.C. 202, 13 S.E. 790, 791.

'During the wife's life the husband has no such interest as is subject to levy and sale to satisfy a judgment against him.' Hood v. Mercer, 150 N.C. 699, 64 S.E. 897, 898; Davis v. Bass, supra; Winchester-Simmons Co. v. Cutler, 199 N.C. 709, 155 S.E. 611; General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828.

In Johnson v. Leavitt, supra, a deed executed by husband and wife, tendered as compliance with their contract to sell their estate by the entirety, was held sufficient to convey a good title free and clear of judgment liens against the husband.

True, a joint judgment against both husband and wife constitutes a lien on their estate by the entirety, Finch v. Cecil, 170 N.C. 72, 86 S.E. 992, and their land may be sold under execution to satisfy such judgment, Martin v. Lewis, 187 N.C. 473, 122 S.E. 180, 35 A.L.R. 144. See Southern Distributing Co. v. Carraway, 189 N.C. 420, 127 S.E. 427.

Too, a conveyance by one spouse to another of land owned by them as tenants by the entirety, when the requirements of the law are complied with in the execution thereof, is valid as an estoppel. Jones v. Lewis, 243 N.C. 259, 262, 90 S.E.2d 547, and cases cited. In this connection, see Davis v. Bass, supra, 188 N.C. at page 206, 124 S.E. 566, and cases cited.

Based upon the authorities cited, it must be held that R. E. Edwards had no (divisible) interest in the subject property that was subject to sale under judgment and execution against him alone. Hence, the sheriff's purported sale was void. While his deed to Bladen County purported to convey the property described therein, his authority to convey was limited to that conferred upon him by the judgment, the execution and by his own advertisement and sale.

Persons who assert title under a sheriff's deed made pursuant to a tax foreclosure proceeding under G.S. § 105-392 are charged with notice of what appears in the records comprising such proceeding. City of...