Odum v. Russell

• Decision Date: 20 December 1919
• Docket Number: 304.
• Citation: 101 S.E. 495,179 N.C. 6
• Parties: ODUM v. RUSSELL ET AL.
• Court: North Carolina Supreme Court

101 S.E. 495

179 N.C. 6

ODUM v. RUSSELL ET AL.

No. 304.

Supreme Court of North Carolina

December 20, 1919

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

Action by J. T. Odum against G. H. Russell and others. From the judgment rendered, the defendants G. H. Russell and W. H Weatherspoon appeal. Affirmed.

Clark C.J., dissenting.

A deed to husband and wife, though not designating them as such creates an estate by entirety, and not a tenancy in common.

Russell & Weatherspoon, of Laurinburg, in pro. per.

McIntyre Lawrence & Proctor, of Lumberton, for appellee.

BROWN, J.

The deed under which plaintiff claims was executed by D. D. McCall and wife to J. T. Odum and Florence H. Odum, and was in the usual and ordinary form of a fee-simple deed with covenants of general warranty. His honor found as a fact that, at the time of the execution and delivery of this deed, Florence H. Odum was the wife of J. T. Odum; that she died since the execution of the deed, leaving her surviving five children, who are among the defendants in this action. Plaintiff therefore claims that an estate by entireties was created by this deed, and that upon the death of his wife he became the sole owner of said lands in fee simple by survivorship.

Defendants contend that, inasmuch as Florence H. Odum was not described in the deed as being the wife of J. T. Odum, an estate by entireties was not created, and that the grantees took as tenants in common. The precise question presented is therefore whether it is necessary that the parties be described and designated as husband and wife in order to create an estate by entireties.

It is not necessary to create an estate by entireties that the parties be described in the deed as husband and wife. It is not the description or designation of the parties as husband and wife that creates the estate by entireties, but it is the fact that the parties sustain that relation. An estate by entireties rests solely upon the common-law doctrine of the oneness of husband and wife, and inasmuch as they are, in contemplation of law, but one person, they take per tout et non per my.

In the findings of fact it is declared that the two grantees, J. T. Odum and Florence H. Odum, sustained a relation of husband and wife at the time of the execution of the deed, although they are not so described in the deed itself. We think this is well settled by repeated adjudications and by the text-books. Long v. Barnes, 87 N.C. 329; Hulett v. Inlow, 57 Ind. 412, 26 Am. Rep. 64; McLaughlin v. Rice, 185 Mass. 212, 70 N.E. 52, 102 Am. St. Rep. 339; Appeal of Lewis, 86 Mich. 340, 48 N.W. 580, 24 Am. St. Rep. 94; Thornberg v. Wiggins, 135 Ind. 178, 34 N.E. 999, 22 L. R. A. 42, 41 Am. St. Rep. 422.

The doctrine is laid down in 13 Ruling Case Law, p. 1111, as follows:

"In order that a conveyance may create a tenancy by entireties, it is not necessary that the grantees be described as husband and wife, or their marital relation referred to."

"So a deed to a man and woman vests title in them as tenants by entireties if they are husband and wife, though the grantees did not have any intent what technical estate should be conveyed to them." McLaughlin v. Rice, 185 Mass. 212, 70 N.E. 52, 102 Am. St. Rep. 339.

The judgment is affirmed.

CLARK C.J. (dissenting).

The estate by entireties was not created by statute in England and has been recognized at no time by any statute in this state. On the contrary, being an estate in joint tenancy, it was abolished by the statute of 1784, c. 204, § 6, now Rev. § 1579, which abolished "all estates, real or personal, held in joint tenancy" and converted them into tenancies in common. No one has ever denied that an estate by entireties is an estate in joint tenancy. It was further abolished by the Constitution of 1868, art. 10, § 6, which provided that all property of any married woman, whether acquired before or after marriage "shall be and remain the sole and separate estate and property of such female."

It follows that when the statute, Rev. § 1579, required that all property which is conveyed to any two persons shall be held by them as tenants in common and not as joint tenants, that the same rule will apply when it is conveyed to two persons who happen to be man and wife.

The estate by entireties which was created solely by "judicial legislation" persists and continues to live in spite of statutory and constitutional abolition solely by "judicial recognition." It is argued that, because other judges have so held, this anomalous and troublesome estate which continually comes up to defeat the rights of married women, must continue notwithstanding the act of 1784 and the Constitution of 1868. We had exactly the same anomaly in the doctrine that a man was not punishable for thrashing his wife if he did not permanently injure her. That doctrine, like the estate by entireties, was created by judicial legislation at a time when the judges of England were, almost without exception, priests, and without statutory recognition it was continued in this state long years after it was repudiated by the courts in England and in the other states of this country. It was expressly held as late as State v. Black, 60 N.C. 263, 86 Am. Dec 436, upon the ground that the husband should use "such a degree of force as is necessary to * * * make her behave...