Southern Distributing Co. v. Carraway

• Decision Date: 08 April 1925
• Docket Number: 158.
• Citation: 127 S.E. 427,189 N.C. 420
• Parties: SOUTHERN DISTRIBUTING CO. v. CARRAWAY ET AL.
• Court: North Carolina Supreme Court

127 S.E. 427

189 N.C. 420

SOUTHERN DISTRIBUTING CO. v. CARRAWAY ET AL.

No. 158.

Supreme Court of North Carolina

April 8, 1925

Appeal from Superior Court, Greene County; Midyette, Judge.

Action by the Southern Distributing Company against H. T. Carraway and Willie G. Carraway and others. Consent judgment was entered against defendants. From an order directing sale of lands held by defendants named by the entirety to satisfy such judgment, defendants named appeal. Error.

Upon objections presented, there was an order directing a sale of lands held by the defendants Henry T. Carraway and Willie G Carraway, husband and wife, as tenants by the entirety, to satisfy the judgment rendered in this cause, from which the two defendants appeal, assigning said order as error.

Consent judgment construed as if parties entered contract embodying terms of judgment.

George M. Lindsay, of Snow Hill, for appellants.

Martin & Sheppard, of Farmville, and Eastwood D. Herbert, for appellee.

STACY C.J.

Following a compromise between the parties, a consent judgment was entered in this cause against "Emma R. Carraway and Willie G. Carraway, trading as East Carolina Supply Company and Emma R. Carraway, Henry T. Carraway, and Willie G Carraway, individually," for $7,894.59, with interest and costs.

The defendants Henry T. Caraway and Willie G. Carraway are husband and wife; they own a tract of land as tenants by the entirety. The sheriff has been directed to sell said property. The appeal presents the question as to whether this particular tract of land may be sold under an execution to satisfy the judgment rendered herein. We think not. Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490; Davis v. Bass, 188 N.C. 200, 124 S.E. 566.

It will be observed that so far as Henry T. Carraway and Willie G. Carraway, husband and wife, are concerned, the judgment is rendered against them individually, or separately, and not jointly, as upon a joint obligation. It is specifically designated in the judgment that it is entered against these defendants "individually". Their liability is not joint and several, as was the case in Martin v. Lewis, 187 N.C. 473, 122 S.E. 180; Frey v. McGaw, 127 Md. 23, 95 A. 960, L. R. A. 1916D, 113; and Ades v. Caplin, 132 Md. 66, 103 A. 94, L. R. A. 1918D, 276.

It is evident from the record that the judgment, which was entered by consent and as a compromise between the parties, was based upon an indebtedness of the partnership, composed of Emma R. Carraway and Willie G. Carraway, and for the payment of which, it would seem, Henry T. Carraway was only secondarily liable.

It was no doubt the purpose of the defendants to exclude the property, held by them as tenants by the entirety, from execution under this judgment, for they consented that same might be entered against them individually and not otherwise. It is the law with us that lands held by husband and wife as tenants by the entirety are not subject to levy under execution on a judgment rendered against either the husband or the wife individually, nor can the interest of either be thus sold. Hood v. Mercer, 150 N.C. 699, 64 S.E. 897.

"The unity of the husband and wife as one person, and the ownership of the estate by that person, prevents the disposition of it otherwise than jointly"--Merrimon, C.J., in Bruce v. Nicholson, 109 N.C. 204, 13 S.E. 790, 26 Am. St. Rep. 562, quoted with approval in Ray v. Long, 132 N.C. 896, 44 S.E. 652, and other later cases.

"It requires the co-operation of both to dispose of it effectually." Bank v. McEwen, 160 N.C. 419, 76 S.E. 222, Ann. Cas. 1914C, 542.

The present judgment is against each individually, or separately, and, for purposes of lien and execution, it is tantamount to a personal and separate judgment against each defendant, so far as Henry T. Carraway and his wife are concerned. In Hupfel's Sons v. Getty (C. C. A.) 299 F. 939, two separate judgments were entered, at the same term of court, against Bernard Lucke and Marie Lucke, husband and wife, on an indebtedness for the payment of which the husband's liability was original and the wife's secondary, and it was held that their entirety estate was not subject to be taken under an execution issued on either judgment.

"Individually" means separately and personally, as distinguished from jointly or officially, and as opposed to collective or associate action or common interests. Century Dictionary; Oil Co. v. Bank (Tex. Civ. App.) 255 S.W. 219. Suppose a judgment were rendered against John Doe and Richard Roe individually, this would not be a judgment against them as members of the partnership firm of "Doe & Roe," nor would it be a lien upon the property belonging to such copartnership in the absence of a statute making it so. Willis v. Hill, 19 N.C. 231, 31 Am. Dec. 412; Street v. Meadows, 33 N.C. 130; Chemical Co. v. Walston, 187 N.C. 817, 123 S.E. 196.

Where lands are conveyed to husband and wife, to be held by them individually, they would take the same by moieties, as tenants in common, and not by the entirety. Davis v. Bass, supra. Hence a judgment rendered against husband and wife individually or separately should not be held as a joint obligation, rendering an estate held by them as tenants by the entirety liable therefor. Johnson v. Leavitt, supra.

In the instant case, it can hardly be said the defendants have acted "joi...