Freeman v. Belfer
Decision Date | 23 May 1917 |
Docket Number | (No. 473.) |
Citation | 92 S.E. 486 |
Parties | FREEMAN et al. v. BELFER et al. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Randolph County; Carter, Judge.
Action by Charlotte Freeman and others against Rodolph Belfer and others. From judgment for plaintiffs, defendants appeal. Reversed.
This is an action to recover land, tried on the following agreed statement of facts:
(1) That this action was instituted in the superior court of Randolph county on the 16th day of August, 1916, for the recovery of the land described in a deed hereinafter set forth, and all the defendants were personally served with summons.
(2) That prior to July 31, 1890, Travis Smith and Louisa Smith were legally married, and at that time they were husband and wife.
(3) That on the 31st day of July, 1890, B. B. Barnes executed a deed conveying the land in controversy to the said Travis Smith and his wife, Louisa Smith, in fee by entireties, which deed was duly registered on August 1, 1890.
(4) That at March term, 1907, the said Travis Smith obtained a judgment of divorce a mensa et thoro from the said Louisa Smith on the ground of abandonment.
(5) That said Travis Smith died intestate in the year 1912, and the plaintiffs, who are his sisters, are the only heirs at law.
(6) That Louisa Smith survived her husband and died intestate in the year 1916, and the defendants, who are her brothers, are her only heirs at law.
(7) The plaintiffs contend that they are the owners of said land or at least of one-half thereof as tenants in common, and the defendants deny that the plaintiffs own any interest therein, and contend that they are sole seised of said land.
His honor held that a divorce a mensa et thoro severed the marriage relation, and that the plaintiffs were entitled to recover one-half of the land in controversy, and the defendants excepted and appealed.
J. A. Spence, of Ashboro, for appellants.
Hammer & Kelly, of Ashboro, for appellees.
The idea that husband and wife are one, or, as generally expressed, of the unity of the person, does not have its origin in the common law. It dates from the Garden of Eden, when it was declared, "They shall be one flesh" (Gen. ii, 14), and it has been reaffirmed and preserved in the Gospels and the Epistles. "Wherefore they are no more twain, hut one flesh." Matt, xix, 5. "They twain shall be one flesh." Mark x, 8. "They two shall be one flesh." Eph. v, 31.
It is on the doctrine of the unity of person that estates by entireties, with the right of survivorship, rest. Motley v. White-more, 19 N. C. 537; Topping v. Sadler, 50 N. C. 360; Long v. Barnes, 87 N. C. 334; Harrison v. Ray, 108 N. C. 216, 12 S. E. 993, 11 L. R. A. 722, 23 Am. St. Rep. 57; Bruce v. Nicholson, 109 N. C. 204, 13 S. E. 790, 26 Am. St. Rep. 562; Gray v. Bailey, 117 N. C. 442, 23 S. E. 318; Ray v. Long, 132 N. C. 891, 44 S. E. 652; McKinnon v. Caulk, 167 N. C. 412, 83 S. E. 559, L. R. A. 1915C, 396.
The court says in Motley v. Whitemore, supra, which is approved in the other cases cited:
—and in McKinnon v. Caulk, after citing a number of cases:
"A perusal of these and other authorities on the subject will disclose that the estate in its essential features and attributes is made dependent on the oneness of person of the husband and wife."
Perhaps the fullest and clearest statement is that of the present Chief Justice in Harrison v. Ray, 108 N. C. 216, 12 S. E., 993, 11 L. R. A. 722, 23 Am. St. Rep. 57, written after the adoption of the present Constitution, in which, following Pearson, J., in Topping v. Sadler, he advances a step beyond his predecessors and adds a fifth unity to the four common-law unities, that of the unity of the person of husband and wife. He says:
These authorities and others also establish the principle that changes as to the property rights of married women brought about by modern Constitutions and statutes have neither destroyed nor altered the nature of the estate by entireties.
Hoke, J., speaking for a unanimous court, said in the McKinnon Case:
There is some conflict in the authorities from other states as to the effect of the married woman's property acts on estates by entireties, but the better opinion and weight of authority is in favor of the position adopted by this court.
The author says in 13 R. C. L. 1101:
And there are more than 20 cases cited in support of the text.
Clark, C. J., calls attention in Bynum v. Wicker, 141 N. C. 95, 53 S. E. 478, 115 Am. St. Rep. 675 (1906), to the failure of the General Assembly to change the estate by entireties into a cotenancy, and concludes that, in the absence of legislative action, the estate possesses the same properties as at common law. He says:
The same learned judge also says in West v. Railroad, 140 N. C. 620, 53 S. E. 477, 6 Ann. Cas, 360:
"In Long v. Barnes, 87 N. C. 333, it is held that the Constitution (article 10, § 6), as to the rights of married women, did not 'destroy or change the properties and incidents belonging to the estates' held by entireties."
And he adds after discussing the incidents and properties of the estates:
'
If, therefore, the estate by entireties rests and is dependent upon the oneness of the person of husband and wife, and not upon property rights, and if the changes in the rights of property of married women have not destroyed or affected the nature of the estate, it follows that no decree can change the estate to a tenancy in common, unless it severs the marriage relation and makes the husband and wife two persons and not one.
Does a decree a mensa et thoro have this effect? A decree a mensa et thoro does not purport on its face to dissolve the bonds of matrimony, and it is in legal effect simply a decree of separation.
As said in Evans v. Evans, 43 Minn. 31, 44 N. W. 524, 7 L. R. A. 448, the marriage relation is merely suspended, not annulled, and in People v. Cullen, 153 N. Y. 629, 47 N. E. 894, 44 L. R. A. 423, the parties still remain husband and wife in the eye of the law, and the authorities are practically unanimous in favor of the principle as appears from the following note to Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 360:
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