Holton v. Holton

ClaeksoN, J.

From the record we take it that the deed to the land was made to husband and wife, plaintiff and defendant in this cause. The application and order tendered the court so states. The court below, from the application and order tendered, made no error in refusing to sign the order.

“If any husband shall separate himself from his wife and fail to provide her and the children of their marriage with the necessary subsistence, according to his means and condition in life, or if he shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action in the Superior Court of the county in wbicb tbe cause o£ action arose, to bave a reasonable subsistence and counsel fees allotted and paid, or secured to ber from tbe estate or earnings of ber busband. Pending tbe trial and final determination of tbe issues involved in sucb action, and also after tbey are determined, if finally determined, in favor of tbe wife, sucb wife may make application to tbe resident judge of tbe Superior Court or tbe judge bolding tbe Superior Courts of tbe district in wbicb tbe action is brought, for an allowance for sucb subsistence and counsel fees, and it shall be lawful for sucb judge to cause tbe busband to secure so much of bis estate or to pay so much of bis earnings, or both, as may be proper, according to bis condition and circumstances, for tbe benefit of bis said wife and tbe children of tbe marriage, having regard also to tbe separate estate of tbe wife. Sucb application may be beard in or out of term, orally or upon affidavit, or either, or both. No order for sucb allowance shall be made unless tbe busband shall bave bad five days notice thereof; but if tbe busband shall bave abandoned bis wife and left the State, or shall be in parts unknown, or shall be about to remove or dispose of bis property for tbe purpose of defeating tbe claim of bis wife, no notice shall be necessary. Tbe order of allowance herein provided for may be modified or vacated at any time, on tbe application of either party or of any one interested. In actions brought under this section, tbe wife shall not be required to file tbe affidavit provided in section 1661, but shall verify ber complaint as prescribed in tbe case or ordinary civil actions.” C. S., cb. 30, sec. 1667; Public Laws 1921, cb. 123. Counsel fees allowed by Public Laws 1921, cb. 123.

“An attachment against tbe husband’s land will lie in favor of tbe wife, abandoned by him, for a reasonable subsistence or allowance adjudged by tbe court, under tbe implied contract that be support and maintain ber, under tbe statute declaring and enforcing it, and under tbe order of court and attachment of tbe husband’s land is basis for the publication of summons. Tbe wife’s inchoate right to alimony makes ber a creditor of her busband, enforceable by attachment, in case of bis abandonment, wbicb puts every one on notice of ber claim and ber priority over other creditors of ber busband.” Walton v. Walton, 178 N. C., 73; White v. White, 179 N. C., 599; Anderson v. Anderson, 183 N. C., 141; Moore v. Moore, 185 N. C., 332.

From tbe facts appearing in this case, tbe land sought to be sold was deeded to husband and wife. It is well settled in this State that when land is conveyed or devised to a busband and wife, nothing else appearing, tbey bold by entirety, and, on the death of either, tbe survivor gets tbe entire estate in the land.” Turlington v. Lucas, at this term {ante, 283).

Neither tbe interest of the husband nor that of the wife can be sold under execution, so as to pass away title during their joint lives or as against the survivor after the death of one of them. Bruce v. Nicholson, 109 N. C., 204; Hood v. Mercer, 150 N. C., 699; Bank v. McEwen, 160 N. C., 414; Turlington v. Lucas, sufra.

The interest and control of the husband during the existence of the joint estate or the joint lives of the two parties is well illustrated in what is known as “the flume case.” Dorsey v. Kirkland, 177 N. C., 520.

“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 affect the right of the survivor, yet subject to this limitation, the husband has the right in it, which is 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.” West v. R. R., 140 N. C., 620.

In the property of' the husband, not held as husband and wife by entireties, with the right of survivorship, the husband cannot, under C. S., 1667, claim homestead or personal property exemptions.

In Anderson v. Anderson, 183 N. C., 143, Adams, J., says that the allowance made under C. S., 1667, is not such a “debt” as would give the husband the right to claim his homestead or personal-property exemption.

It is settled law in this State that the husband has the right of possession of the entire property and' to take all the profits of the estate. The court has the right to assign possession to the wife of a reasonable part of his estate for the support of herself and children, under the statutes of 1868-69, ch. 123, now C. S., 1668, which provides: “In all cases in which the court grants alimony by the assignment of real estate the court has power to issue a writ of possession when necessary, in the judgment of the court, to do so.” This statute seems to have been passed with a view to cases of this kind where the husband has abandoned his wife and gone to parts unknown.

In Crews v. Crews, 175 N. C., 168 (overruling Skittletharpe v. Skittletharpe, 130 N. C., 72), the Court held, in effect, that the judge may direct monthly payments from husband’s estate, which includes his. income from property and his labor, considering his capacity to work. If the realty held in entireties is the sole property of the husband during his life, the proceeds therefrom can be directed by the court to be paid by him for the subsistence of his wife and children, under O. S., 1667, which provides that “the wife may institute an action in the Superior Court of the county in which .the cause of action arose to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.” Real estate held-by the busband by entireties ■ is bis • real estate, for bis life at least, and tbe income thereof is bis earnings from wbicb sucb allotment can be ordered to be paid. Tbis is not a “debt,” in tbe ordinary sense of tbe word, as is said by Adams, J., in Anderson v. Anderson, sufra, but an appropriation or allotment under tbe police power, wbicb protects tbe wife and children from indulgence and becoming a charge upon tbe. public when tbe busband is in actual possession of realty, under whatever title, if by means thereof be receives earnings or income. Tbe possession thus assigned to tbe wife under C. S., 1668 may be rented out to produce an income, or tbe court can order tbe rent, as it shall accrue and become personalty, to be applied to tbe subsistence of tbe wife and children. It is tbe contingency of tbe wife becoming owner if she becomes tbe longest liver, wbicb alone would prevent a sale of tbe property.

Hoke, J., in McKinnon v. Caulk, 167 N. C., 411, said; “Our statute having abolished all survivorship in fee-simple estates, except tbis and estates of trustees without beneficial interest (Revisal, secs. 1579-1580), tbe owners should thereafter bold as tenants in common. It is not a satisfactory answer to tbis position that, tbe right of survivorship having attached at tbe creation of tbe estate, it could not be divested by a decree of divorce subsequently granted. Tbe very question presented is, whether tbis right of survivorship would attach as an inseparable incident or ownership, or was it dependent upon tbe unity of person between tbe two ? And our conclusion on tbis question, drawn from tbe history and nature of tbe estate, is, we think, in accord with right reason and tbe great weight of authority,” quoting several cases, and especially from Stelz v. Shreck, 128 N. Y., 263, where Peckham, J. (subsequently of tbe United States Supreme Court bench), held that,’as an absolute divorce terminates tbe marriage and unity of persons just as completely as death itself, tbe “natural and logical outcome of sucb a state of facts (absolute divorce) is that tbe tenancy by entirety is severed, and, tbis having taken place, each takes bis or her proportionate share as tenant in common without survivorship.” Tbe whole subject is fully discussed and disposed of by Hoke, J., in that case (McKinnon v. Caulk), wbicb is cited and approved in Finch v. Cecil, 170 N. C., 75. In Freeman v. Belfer, 173 N. C., 586, McKinnon v. Gaulle was said to be in accordance with holdings in all other States, except two, upon tbe point that an absolute divorce dissolved tbe entireties and made tbe parties tenants in common. Tbis was cited with approval by Walker, J., in Moore v. Trust Co., 178 N. C., 126, where be says: “A divorce a vinculo, as it destroys tbe unity, will convert tbe estate by entireties into one in common.” See Turlington v. Lucas, supra.

As thus modified, tbe judgment will be affirmed.

Modified and affirmed.