Martin v. Lewis

• Decision Date: 26 March 1924
• Docket Number: 286.
• Citation: 122 S.E. 180,187 N.C. 473
• Parties: MARTIN ET UX. v. LEWIS, SHERIFF, ET AL.
• Court: North Carolina Supreme Court

122 S.E. 180

187 N.C. 473

MARTIN ET UX. v. LEWIS, SHERIFF, ET AL.

No. 286.

Supreme Court of North Carolina

March 26, 1924

Appeal from Superior Court, Robeson County; Cranmer, Judge.

Action by L. H. Martin and wife against R. E. Lewis, Sheriff of Robeson County, and another. Judgment for plaintiffs, and defendants appeal. Reversed.

A judgment against a husband and wife jointly is a lien upon real estate held by them as tenants by the entirety, and the real estate may be sold under an execution issued on the judgment.

Land held by husband and wife as tenants by the entirety held not subject to a lien and execution on a judgment against either husband or wife.

This is an injunction to restrain the sheriff of Robeson from selling lands held by the plaintiffs as tenants by the entirety under an execution issued upon a judgment taken against the husband and wife jointly in favor of the defendant, A. L. Bullock. The sheriff advertised the excess of the plaintiffs' real estate over and above the two homesteads allotted them as tenants by the entirety. The plaintiffs applied to the court for an injunction. Restraining order was issued by Martin J., which was made permanent by Cranmer, J., at February term, and defendants appealed.

McLean Varser, McLean & Stacy, of Lumberton, for appellants.

W. E Lynch, of Rowland, and Johnson, Johnson & McLeod, of Lumberton, for appellees.

CLARK C.J.

The only question presented is whether a judgment against a man and his wife jointly is a lien upon real estate held by them as tenants by the entirety.

When there is a judgment against only the husband or the wife with us no lien attaches against the estate by the entirety, though it is otherwise in some states. This case presents for the first time in this court the question whether, when the judgment is a joint judgment against the man and his wife, the property can be sold thereunder. Whereever this question has been passed upon in any jurisdiction, such judgment has always been held to be valid lien upon the realty held by the judgment debtors as tenants by the entirety. The exact point as to a lien upon lands held by the entirety was presented in Finch v. Cecil, 170 N.C. 72, 86 S.E. 992, in which case a man and wife had contracted for materials to build a house upon a tract of land held by them as tenants by the entirety, and the court held that the materialman had a lien upon the house and real estate (the house being a part of the freehold) because the contract for materials was made by the husband and wife jointly. It was held that, if the contract for the materials had been made by either the husband or wife, without the joinder of the other, the materialman would not have had a lien upon the realty for the material furnished to build a house thereon. In that case the court said:

"The indebtedness is due by both the defendants who joined in the contract. If the debt were owing by the husband or by the wife, for material furnished to erect a building upon property so held, it would be uncertain who would be the survivor, and in such case we have held that an estate by the entirety cannot be incumbered nor a lien acquired upon it without the assent of the other (West v. R. R., 140 N.C. 620, Bruce v. Nicholson, 109 N.C. 202), nor would a judgment against either be a lien upon the property (Hood v. Mercer, 150 N.C. 699). The reason given is that 'at common law neither the husband nor the wife can deal with the estate apart from the other or has any interest which can be subjected by creditors so as to affect the rights of the survivor.' 15 A. & E. Enc. (2d Ed.) 840, citing West v. R. R., supra."

The direct question presented in this case has been passed upon by several courts of last resort in other states where the doctrine of tenants by the entirety is still recognized and without a single exception all these courts hold that a judgment against the husband and wife jointly is a judgment by the entireties, and therefore a lien upon real estate held by them as tenants by the entireties.

In Frey v. McGaw, 127 Md. 23, 95 A. 960, L. R. A. 1916D, 113, the court says:

"The case as presented is entirely different from what it would have been if the judgment had been against either Mr. or Mrs. Frey alone. This arises from the peculiar nature of the estate by entireties. It has been repeatedly held in this state that where a judgment is recovered against one of two tenants by the entireties no lien can attach to the interest of the one. Jordan v. Reynolds, 105 Md. 288, 9 L. R. A. (N. S.) 1026, 121 Am. St. 578, 12 Ann. Cas. 51, and cases there cited, but it has never been held in this state or elsewhere that, in the absence of statutory exemption, where there is an entire judgment against joint defendants, no lien is imposed upon estates or interest in land held by the entireties."

This was again held in Ades v. Caplan, 132 Md. 66, 103 A 94, L. R. A. 1918D, 276. Ewing v. Rider, 125 Md. 149, 93 A. 409, and also in Sharpe v. Baker, 51 Ind.App. 547, 96 N.E. 627, 99 N.E. 44, Ditching Co. v. Beck, 99 Ind. 247, and in Sanford v. Bertrau, 204 Mich. 244, 169 N.W. 880. In the latter case the court held that "land held by husband and wife as tenants by entireties is not subject to levy under execution on judgment rendered against either husband or wife...