Bynum v. Wicker. , 141 N.C. 95 ( 1906 )

Edward Fields and wife were tenants by entirety of the tract in question. Edward Fields, without the joinder of his wife, mortgaged the land to John R. Lane. The land was sold under the power of sale in the mortgage, and the plaintiff holds by mesne conveyance from the purchaser at such sale. This is a proceeding for an injunction against the defendants, who are the agents of Edward Fields and (96) his wife, to prevent their cutting the timber on said land. This estate by entirety is an anomaly, and it is perhaps an oversight that the Legislature has not changed it into a cotenancy, as has been done in so many states. This not having been done, it still possesses here the same properties and incidents as at common law.Long v. Barnes, 87 N.C. 333; West v. R. R., 140 N.C. 620. At common law "the fruits accruing during their joint lives would belong to the husband" (Simonton v. Cornelius, 98 N.C. 437), hence the husband could mortgage or convey it during the term of their joint lives, that is, the right to receive the rents and profits; but neither could encumber it or convey it so as to destroy the right of the other, if survivor, to receive the land itself unimpaired. "He cannot alien or encumber it, if it be a freehold estate, so as to prevent the wife or her heirs, after his death, from enjoying it, discharged from his debts and engagements." 2 Kent Com., 133; Bruce v. Nicholson, 109 N.C. 204.

It is clear, therefore, that the timber being a part of the freehold, the plaintiff would have no right to cut the timber, claiming under a conveyance from the husband alone. The husband having conveyed his interest is estopped from interfering with the possession of the premises during the joint lives of himself and wife, and of course so is the wife. Whether, if he should be survivor, his deed is valid as a conveyance of his interest by survivorship, is a point as to which the authorities are conflicting, but we are not now called upon to decide that point, as it is not before us.

In refusing an injunction to the hearing there was

Error.

Cited: Jones v. Smith, 149 N.C. 319; Greenville v. Gornto, 161 N.C. 343;McKinnon v. Caulk, 167 N.C. 412; Freeman v. Belfer, 173 N.C. 583;Seip v. Wright, ib., 16; Gooch v. Bank, 176 N.C. 217; Dorsey v. Kirkland,177 N.C. 523; Moore v. Trust Co., 178 N.C. 125; Odum v. Russell, 179 N.C. 9.

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