Nesbitt v. Fairview Farms, Inc.
| Decision Date | 24 February 1954 |
| Docket Number | No. 99,99 |
| Citation | 239 N.C. 481,80 S.E.2d 472 |
| Court | North Carolina Supreme Court |
| Parties | NESBITT et ux. v. FAIRVIEW FARMS, Inc. |
George Pennell, Harry C. Martin, Ashville, for plaintiff-appellant.
Guy Weaver, Ashville, for defendant-appellee.
At the outset, it is appropriate to say that in this State it is provided by statute, G.S. § 38-1, that 'The owner of land, any of whose boundary lines are in dispute, may establish any of such lines by special proceedings in the superior court of the county in which the land or any part thereof is situated.' Petitioners have proceeded under this statute.
The title to the land is not in issue unless made so by the pleadings. Cole v. Seawell, 152 N.C. 349, 67 S.E. 753. Here the petitioners allege in their petition that they are the owners of a certain tract of land, that defendant is the owner of certain lands adjoining the lands of petitioners, and that defendant disputes certain boundary lines of petitioners' land. On the other hand, while defendant, answering, does not deny the allegations of ownership set out in the petition 'except with respect to lappages and infringements upon the lands owned by the defendant', it joins petitioners in a desire to have the lines between petitioners and defendant properly and correctly located. Thus the title is not really in dispute. See Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468; Clark v. Dill, 208 N.C. 421, 181 S.E. 281; Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501.
Now, while appellants assign as error each of the matters to which the several exceptions shown relate, they state, in their brief filed here, these as the questions involved: Did the trial judge err (1) 'in his findings of fact Nos. 1, 2 and 4?', and (2) 'in overruling plaintiffs' motion to reject the second survey?'. Careful consideration of the record, and applicable principles of law, leads to negative answers.
These questions are to be, and are considered in the light of the admitted fact that appellants, petitioners or plaintiffs, as they are interchangeably designated in the record on this appeal, acquired title to the land, to which they assert ownership, by a deed made to them as husband and wife. Such a deed, unless it be otherwise provided therein, vests in the husband and wife an estate by the entireties, or by the entirety, with right of survivorship, as at common law. And the doctrine of title by entireties between husband and wife as it existed at common law remains unchanged by statute in his State. Decisions of this Court so holding are too numerous to list. But see Davis v. Bass, 188 N.C. 200, 124 S.E. 566, where in opinion by Stacy, J., the Court treats of the incidents and properties of an estate by the entirety. See also Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L.R.A. 722; West v. Aberdeen & R. F. R. Co., 140 N.C. 620, 53 S.E. 477; Morton v. Blades Lbr. Co., 154 N.C. 278, 70 S.E. 467; First Nat. Bank v. Hall, 201 N.C. 787, 161 S.E. 484; Moore v. Shore, 208 N.C. 446, 181 S.E. 275.
However, the husband is entitled during coverture to the full possession, control and use of the estate, and to the rents and profits arising therefrom to the exclusion of the wife. See West v. Aberdeen & R. F. R. Co., supra.
In the West case it is stated: "But while 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 right of the survivor, yet subject to this limitation the husband has the rights in it which are incident to his own property. * * * He is entitled during the coverture to the full control and usufruct of the land, to the exclusion of the wife.' 15 Am. & Eng.Enc. (2d Ed.) 849.'
And in the West case the Court referred to the ruling in the case of Topping v. Sadler, 50 N.C. 357, 358, that the husband may maintain an action in ejectment, and held that the husband, West, could maintain an action for damages to the land which had been conveyed to husband and wife, and which they held by entireties, and that the wife was not a necessary party. Compare Moore v. Shore, supra. Applying these rulings of the Court to the case in...
To continue reading
Request your trial
-
Bumgarner v. Corpening
...222 N.C. 701, 24 S.E.2d 525. Title or ownership is not directly put in issue in a processioning proceeding. Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 80 S.E.2d 472; Brown v. Hodges, 230 N.C. 746, 55 S.E.2d 498; Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468; Geddie v. Williams, 189 N.C......
-
Perry v. Jolly
...to receive the rents and profits from property held by entireties. In Re Estate of Perry, 256 N.C. 65, 123 S.E.2d 99; Nesbitt v. Fairview Farms, 239 N.C. 481, 80 S.E.2d 472. The law applicable to the fund in this instance, therefore, gives the husband the right to control. The income from i......
-
Koob v. Koob
...and use of the estate, and to the rents and profits arising therefrom to the exclusion of the wife.' Nesbitt v. Fairview Farms, Inc., 239 N.C. 481, 486, 80 S.E.2d 472, 477 (1954). However, 'the rents and profits therefrom, which belong to the husband, may be charged with the support of his ......
-
Kanupp v. Land
...the road described in that judgment; but plaintiffs cannot ask for the location of something which they deny exists. Nesbitt v. Fairview Farms, 239 N.C. 481, 80 S.E.2d 472; Wood v. Hughes, 195 N.C. 185, 141 S.E. 569; Parker v. Taylor, 133 N.C. 103, 45 S.E. 473. Plaintiffs do not seek damage......