Woolard v. Smith

Decision Date26 September 1956
Docket NumberNo. 32,32
Citation94 S.E.2d 466,244 N.C. 489
CourtNorth Carolina Supreme Court
PartiesHattle S. WOOLARD, Florence Sllverthorne, James Enoch Smith, Jr., Pearlle Bell McCullar and W. E. Smith, v. Emma F. SMITH.

LeRoy Scott and L. E. Mercer, Washington, D. C., for plaintiff appellants.

John A. Mayo and Junius D. Grimes, Washington, D. C., for defendant appellee.

RODMAN, Justice.

The judgment presents for decision these questions:

1. May a husband, the owner of land, by deed to himself and wife create an estate by the entireties?

2. If not, may the same result be accomplished by way of estoppel?

It will be noted that the habendum of the deed reads: 'unto the said parties of the first part, their heirs and assigns, in fee simple * * *' Appellants, in their brief, concede this was a clerical error.

The deed, by express language, recites both a desire and a willingness on the part of the party of the first part to create an estate by the entirety. Following this recital are formal words of conveyance followed by general covenants of seizin and warranty.

The right to contract and to convey property ought not to be limited or circumscribed unless prohibited by sound public policy or valid statute.

What sound reason, if any, exists why a deed from a husband to husband and wife cannot, in accord with the express language of the deed, create an estate by the entirety?

Appellants contend that J. E. Smith, the husband, could not, at the same moment, be grantor and grantee. So, they say, the deed conveyed nothing to J. E. Smith. They say that Emma Smith, the other named grantee could take only an undivided half interest. Hence, they say, the deed constituted J. E. Smith and Emma Smith tenants in common and upon the death of J. E. Smith, his half descended to plaintiffs, his heirs at law.

The assertion that one cannot be grantor and grantee at the same instant is logical and a correct statement of law. Pearson, J., expressed it thus: 'Property must at all times have an owner. One person cannot part with the ownership unless there be another person to take it from him. There must be a 'grantor and a grantee and a thing granted.' ' Dupree v. Dupree, 45 N.C. 164.

Appellants assume the very question at issue. They assume that a conveyance to 'J. E. Smith and wife, Emma Smith,' is a conveyance to two separate and distinct individuals. Their assumption does not accord with the theory on which the estate by entireties originated and which is recognized by us.

That husband and wife constitute a legal entity separate and distinct from the component parts of the marital status was recognized as early as the Fourteenth Century. It was so declared by this Court as early as 1837. Motley v. Whitemore, 19 N.C. 537.

The necessity of the unity of person, that is, a separate entity, to create an estate by the entirety has been declared on many occasions by this Court.

The following quotations illustrate the uniform holdings of this Court:

'The idea that husband and wife are one, or, as generally expressed, of the unity of person, does not have its origin in the common law. It dates from the Garden of Eden when it was declared 'they shall be one flesh' (Gen., 2:14), and it has been reaffirmed and preserved in the Gospels and the Epistles. ' Wherefore they are no more twain, but one flesh.' (Matt., 19:5); 'They twain shall be one flesh' (Mark, 10:18); 'They too shall be one flesh.' (Eph., 5:31).

'It is on the doctrine of the unity of person that estates by entireties, with the right of survivorship, rest.' Freeman v. Belfer, 173 N.C. 581, 92 S.E. 486, 487, L.R.A.1917E, 886.

'The estate was predicated upon the fact that, in law, the husband and wife, though twain, are regarded as onethere being, in other words, a unity of person, which has been called the fifth unity of this estate, the others being of time, title, interest, and possession, which also belonged to an estate by joint tenancy.' Moore v. Greenville Banking & Trust Co., 178 N.C. 118, 100 S.E. 269, 272.

'This tenancy by the entirety is sui generis, and arises from the singularity of relationship between husband and wife. In order to comprehend its peculiar properties and incidents, the one fact which must be constantly borne in mind is that the estate may be taken and held only by husband and wife in their capacity as such, and not otherwise, though it is not necessary that they be so described. 13 R.C.L. 1180. As between them, there is but one owner, and that is neither the one nor the other, but both together, in their peculiar relationship to each other, constituting the proprietorship of the whole, and every part and parcel thereof. Ketchum v. Walsworth, 5 Wis. [95, at page] 102. It may be taken under execution against one of the parties only when the legal personage of 'husband and wife' has been reduced to an individuality identical with the natural person of the survivor.' Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490, 492.

'Tenancy by entireties, or by the entirety, is the tenancy by which husband and wife at common law hold land conveyed or devised to them by a single instrument, which does not require them to hold it by another character of tenancy. Littleton, § 291; Tiffany, Real Property, § 194. The husband and wife take the whole estate as one person. Each has the whole; neither has a separate estate or interest * * *.' First Nat. Bank v. Hall, 201 N.C. 787, 161 S.E. 484, 485.

'Estates by the entireties are creatures of the common law created by legal fiction and based wholly on the common-law doctrine that husband and wife are one, and, therefore there is but one estate, and in contemplation of law, but one person owning the whole. * * * By reason of their legal unity by marriage, the husband and wife together take the whole estate as one person. Neither has a separate estate or interest in the land, but each has the whole estate. Upon the death of one the entire estate and interest belongs to the other, not by virtue of survivorship, but by virtue of the title that vested under the original limitation.' Thompson on Real Property, sec. 1803. The New York Court said:

'It [estate by entireties] originated in the marital relation, and, although the survivorship presents the greatest formal resemblance to joint tenancy, instead of founding the estate by the entirety upon the notion of joint tenancy, all the authorities refer it to the established effect of a conveyance to husband and wife pretty much independent of any principles which govern other cases. * * * At common law, husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. These two real individuals, by reason of this relationship, took the whole of the estate between them, and each was seised of the whole, and not of any undivided portion. They were thus seised of the whole because they were legally but one person.' Steltz v. Shreck, 128 N.Y. 263, 28 N.E. 510, 511.

Death creates no new estate in the survivor. The survivor takes by virtue of the original conveyance. Spruill v. Branning Mfg. Co., 130 N.C. 42, 40 S.E. 824; Underwood v. Ward, 239 N.C. 513, 80 S.E. 2d 267.

Presumably appellants would concede that J. E. Smith, the grantor, could convey to a corporation whose only stockholders were the grantor, J. E. Smith, and his wife, Emma Smith. That would be true because a corporation is a different entity, a different person from J. E. Smith, the grantor.

The husband may have property conveyed to a trustee for the husband and his wife. Such conveyance forthwith creates a tenancy by entirety. Akin v. First Nat. Bank, 227 N.C. 453, 42 S.E.2d 518.

A conveyance by one spouse to the other followed by a conveyance by both to a trustee for the husband and wife has been held by us to create an estate by the entireties, the trust being passive, is immediately executed by the statute. Harris v. Carolina Distributing Co., 172 N.C. 14, 89 S.E. 789.

If husband and wife are in law one person, that is, an entity separate from the individuals as the cases declare, the foundation on which appellants build their case falls, and their assertion of ownership must fall with it.

Appellants claim Blackstone supports their position. Blackstone says: 'The properties of a joint-estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time and the unity of possession; or, in other words, joint-tenants have one and the same interest,...

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16 cases
  • Smith v. Smith
    • United States
    • North Carolina Supreme Court
    • 18 Marzo 1959
    ...and wife creates an estate by the entireties. Akin v. First Nat. Bank, 227 N.C. 453, 42 S.E.2d 518. It was held in Woolard v. Smith, 244 N.C. 489, 94 S.E.2d 466, that a husband owning land may create an estate by the entireties by deeding the land to himself and wife. If one tenant in commo......
  • Wilkinson v. US, C-C-89-307-P.
    • United States
    • U.S. District Court — Western District of North Carolina
    • 30 Julio 1991
    ...declared by the North Carolina Supreme Court as early as 1837 in Motley v. Whitemore, 19 N.C. 537 (1837). See also Woolard v. Smith, 244 N.C. 489, 492, 94 S.E.2d 466 (1956). Death creates no new estate in the survivor. The survivor takes by reason of the original conveyance. Underwood v. Wa......
  • L & M Gas Co. v. Leggett, 851
    • United States
    • North Carolina Supreme Court
    • 1 Mayo 1968
    ...death of husband or wife the survivor becomes the sole owner by virtue of the deed creating the tenancy by the entirety. Woolard v. Smith, 244 N.C. 489, 94 S.E.2d 466. However, where a joint judgment is obtained against the husband and wife during coverture, the lien attaches and the entire......
  • Wilson County v. Wooten, 248
    • United States
    • North Carolina Supreme Court
    • 14 Enero 1960
    ...his debts. Powell on Real Property (1956), section 618; Thompson on Real Property, Joint Tenancy, Volume 4, section 1783; Woolard v. Smith, 244 N.C. 489, 94 S.E.2d 466; Spikings v. Ellis, 290 Ill.App. 585, 8 N.E.2d 962; Gwinn v. Commissioner of Internal Revenue, 287 U.S. 224, 53 S.Ct. 157, ......
  • Request a trial to view additional results

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