West v. Aberdeen & R. R. Co

• Citation: 140 n. c. 620,53 S.E. 477
• Court: United States State Supreme Court of North Carolina
• Decision Date: 27 March 1906
• Parties: WEST. v. ABERDEEN & R. R. CO.

53 S.E. 477

(140 n. c. 620)

WEST.

v.ABERDEEN & R. R. CO.

Supreme Court of North Carolina.

March 27, 1906.

1. Appeal—Amendment in Appellate Court —Addition of Parties—When Permitted.

Though the Supreme Court has power, under Revisal 1905, § 1545, and rule 26 (38 S. E. vii), to allow amedments after appeal by the addition of proper parties, this power is discretionary, and will not be exercised where objection for defect of parties was made below and overruled.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3620.]

2. Husband and Wife—Estate by Entireties—Injury to Land—Right to Sue.

An action for damage by fire to land held by a husband and wife by entireties may be maintained by the husband alone.

[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Husband and Wife, § 757.]

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

Action by W. A. West against the Aberdeen & Rockfish Railroad Company. From a judgment for plaintiff, defendant apeals. Affirmed.

Robinson & Shaw, for appellant.

H. L. Cook and Sinclair & Dye, for appellee.

CLARK, C. J. This is an action brought by the husband alone for damages sustained from fire by the woods on land which had been conveyed to the husband and wife, and which they held consequently by entireties. The plaintiff moved to amend in this court by making his wife a party. Revisal 1905, § 1545, and rule 26 of this court (39 S. E. vii), recognize that such power can be exercised in this court "to amend by making proper parties to any case where the court may deem it necessary and proper, " and, indeed, this court could amend without the statute. Horton v. Green, 104 N. C. 400, 10 S. E. 470; Herndon v. Ins. Co., Ill N. C. 385, 16 S. E. 465, 18 L. R. A. 547. But here the objection for defect of parties was made below and overruled, and this court will not exercise its discretionary power of amendment to destroy an exception duly taken below. Grant v. Rogers, 94 N. C. 755; Wilson v. Pearson, 102 N. C. 290, 9 S. E. 707.

Upon the point presented we are of the opinion that the wife was not a necessary party. It was so held as to an action of ejectment Topping v. Sadler, 50 N. C. 359. In Long v. Barnes, 87 N. C. 333, it is held that the Constitution (article 10, § 6), as to the rights of married women, did not "destroy or change the properties and incidents belonging to the estates" held by entireties. In Simonton v. Cornelius, 98 N. C. 437, 4 S. E. 40, it is said: "So, too, the fruits accruing during their joint lives would belong to the husband" after separation from the land; though neither husband nor wife during their joint lives can convey or incumber the estate without the assent of the other, nor can a lien be acquired on it without such assent, nor can it be sold under execution. Bruce v. Nicholson, 109 N. C. 204, 13 S. E. 790, 26 Am. St Rep. 562; 11 Am. & Eng. Enc. (2d Ed.) 49. The act of 1784 (Revisal 1905, § 1579), abolishing survivorship in joint tenancies, does not apply to estates by entireties. Phillips v. Hodges, 109 N. C. 250, 13 S. E. 769. "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 affectthe 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 the usufruct of the land, to the exclusion of the wife." 15 Am. & Eng. Enc. (2d Ed.) 849, and cases cited in note 2, among them Pray v. Stebbins (Mass.) 55 Am. Rep. 462; Den v. Gardner (N. J.) 45 Am. Dec. 388; Hiles v. Fisher (N. Y.) 39 N. E. 337, 30 L. R. A. 305, 43 Am. St Rep. 762. As to personalty the same rule applies, and where shares of stock stand in the joint names of husband and wife he is entitled to the divi-dends during their joint lives. 15 Am. & Eng. Enc. (2d Ed.) 851; Bramberry's Estate (Pa.) 27 Atl. 405, 22 L. R, A. 594, 36 Am. St Rep. 64. These are the incidents and properties of an estate by entirety when (as in this state) there has been no change by statute, and upon the above authorities the plaintiff can maintain this action without joining the...