Johnson v. Leavitt

• Decision Date: 03 December 1924
• Docket Number: 428.
• Citation: Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490 (N.C. 1924)
• Parties: JOHNSON ET AL. v. LEAVITT.
• Court: North Carolina Supreme Court

125 S.E. 490

188 N.C. 682

JOHNSON ET AL. v. LEAVITT.

No. 428.

Supreme Court of North Carolina

December 3, 1924

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

Action by J. W. Johnson, administrator of J. P. Seawell and others against C. F. Leavitt.Judgment for plaintiffs, and defendant excepts and appeals.Affirmed.

Civil action to recover upon three promissory notes, given by defendant for the purchase price of four lots of land owned by W. P. Benner and wife as tenants by the entirety; the notes in question being assigned and transferred to J. P Seawell for value, before maturity, and now held by his administrator, J. W. Johnson, one of the plaintiffs herein.

W. P Benner and wife, Bettie F. Benner, in accordance with their agreement, have executed and tendered full warranty deed for the lots in question, but defendant declines to accept the same, and refuses to pay his notes, upon the ground that the title offered is defective, it being agreed that, since the execution of the contract to convey said lots, W. P. Benner has suffered several judgments to be taken and docketed against him in the county where the lands are situated.

Upon the hearing and on facts agreed, the court being of opinion that the deed tendered would convey a good title, free and clear of the judgment liens against W. P. Benner and, in accordance with the consent of the parties as to his opinion on this one point in dispute, entered judgment for the plaintiffs; whereupon the defendant excepted and appealed.

Laborer's lien for labor performed and mechanic's lien for work done on premises, held as tenants by the entirety, under a joint contract of husband and wife, have a constitutional priority over the homestead exemption but such priority does not exist in case of statutory lien for materials.

R. L. Burns, of Carthage, for appellant.

H. F. Seawell, of Carthage, for appellees.

STACY J.

The single question presented by this appeal is whether W. P. Benner and wife, Bettie F. Benner, who hold lands as tenants by the entirety, can convey the same free and clear of judgment liens docketed against W. P. Benner in the county where the lands are situated.His honor below was of the opinion that they could, and entered judgment accordingly We are of the same opinion, and the judgment will be affirmed.The exact question was decided in Hood v. Mercer,150 N.C. 699, 64 S.E. 897.See, also, Harris v. Distributing Co.,172 N.C. 14, 89 S.E. 789, Ann. Cas. 1918C, 329, and Davis v. Bass,188 N.C. 200, 124 S.E. 566, and cases there cited.

The case of Bruce v. Nicholson,109 N.C. 202, 13 S.E. 790, 26 Am St. Rep. 562, cited by appellant, and which has been approved in a number of later decisions, was an appeal by a judgment creditor, who claimed a prior lien for his previously docketed judgment against I. A. Sugg over a subsequently executed mortgage given by I. A. Sugg and his wife on lands held by them as tenants by the entirety.The court ordered the sale under the mortgage, and held that the defendant's judgment was not a lien on the land, and was of no avail as against the deed of I. A. Sugg(the judgment debtor) and his wife to lands held by them as tenants by the entirety.This in principle also covers the question here presented, though no judgment creditor is a party to the present action.

But it has been held or suggested in a number of cases, beginning with Topping v. Sadler,50 N.C. 357, and including among others Long v. Barnes,87 N.C. 330;Simonton v. Cornelius,98 N.C. 433, 4 S.E. 38;West v R. R.,140 N.C. 620, 53 S.E. 477, 6 Ann. Cas. 360;Bynum v. Wicker,141 N.C. 85, 53 S.E. 478, 115 Am. St. Rep. 675;Greenville Bank v. Gornto,161 N.C. 343, 77 S.E. 222;Moore v. Trust Co.,176 N.C. 125, 100 S.E. 269, andHolton v. Holton,186 N.C. 355, 119 S.E. 751, that a lease by the husband alone and without the wife's joinder, of premises held by the entirety, is valid during coverture, because the husband is entitled to the possession, income, increase, or usufruct of the property during their joint lives.Hence it is the position of the defendant that to this extent, if no more, the property ought to be, and properly is, liable to be taken under execution for the satisfaction of judgments against the husband.Defendant says that by the terms of C. S. § 677, "all leasehold estates of three years duration or more," owned by the judgment debtor, may be levied on and sold under execution, and that the right to lease an estate by the entirety during coverture is such a leasehold estate in the husband as is liable to execution under the statute."During coverture" is an indeterminate period, and may or may not last for three years or more, albeit, a lease by the husband of an estate by the entirety for 10 years was upheld in Greenville Bank v. Gornto,161 N.C. 341, 77 S.E. 222, subject to be defeated only by the death of the husband prior to that of the wife, but the right to lease such property inures to the husband in his capacity as a member of the marriage state, and not otherwise.30 C.J. 562;13 R. C. L. 1114.

Without deciding whether at common law a lease by the husband, without the wife's joinder, was valid during coverture, from which a departure to this extent may have been made in the decisions so holding, it is sufficient to say that whatever paramount rights the husband had at common law, and now has, in and to the rents and profits and over the lands held by him and his wife as tenants by the entirety, did not, and do not, spring from the peculiar nature of the estate, and are not incidents thereto, but they are rights inuring to the husband from the general principle of the common law which vests in the husband, jure uxoris, the right to the use and control of his wife's lands during coverture, and to take the rents and profits arising therefrom.The common-law rule that the husband is entitled to the rents and profits of his wife's lands is as applicable where she holds a joint title as where she holds sole title. 30 C.J. 567.The estate "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.In other words, whatever superior rights the husband had at common law, and now has, in and to the use and control of an estate by the entirety, were and are incidents belonging to the status of marriage, or the legal relationship of husband and wife.It is only in the capacity of husband and wife that estates may be taken and held by the entirety.Davis v. Bass, supra.At common law the husband was considered the owner of the rents and profits arising from lands held by the entirety, and the properties and incidents of this particular estate have not been changed or altered in their nature or character by statute or by constitutional provision in North Carolina.McKinnon v. Caulk,167 N.C. 411, 83 S.E. 559, L. R. A. 1915C, 396.

The judgments against W. P. Benner were rendered against him individually and not in his capacity as husband...