Bynum v. Wicker.

Supreme Court of North Carolina

Bynum v. Wicker.

53 S.E. 478, 141 N.C. 95, 1906 N.C. LEXIS 72

CourtSupreme Court of North Carolina

DecidedApril 10, 1906

StatusPublished

Cited by31 cases

This text of 53 S.E. 478 (Bynum v. Wicker.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bynum v. Wicker., 53 S.E. 478, 141 N.C. 95, 1906 N.C. LEXIS 72 (N.C. 1906).

Pincite

Opinion

Clark, C. J.

Edward Fields and wife were tenants by entirety of tbe tract in .question. Edward Fields, without tbe joinder of bis wife, mortgaged tbe land to John E. Lane. Tbe land was sold under tbe power of sale in tbe mortgage and tbe plaintiff bolds by mesne conveyance from tbe purchaser at such sale. This is a proceeding for an injunction *96 against the defendants, wbo are the agents of Edward Fields and bis wife, to prevent their cutting the timber on said land.

This estate by entirety is an anomaly and it is perhaps an oversight that jfche Legislature has not changed it into a co-tenancy, 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. Railroad, at this term. At common law “the fruits accruing during their joint lives would belong to the husband” (Si monton 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’s 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.

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Clark, C. J.

Edward Fields and wife were tenants by entirety of tbe tract in .question. Edward Fields, without tbe joinder of bis wife, mortgaged tbe land to John E. Lane. Tbe land was sold under tbe power of sale in tbe mortgage and tbe plaintiff bolds by mesne conveyance from tbe purchaser at such sale. This is a proceeding for an injunction *96 against the defendants, wbo are the agents of Edward Fields and bis wife, to prevent their cutting the timber on said land.

This estate by entirety is an anomaly and it is perhaps an oversight that jfche Legislature has not changed it into a co-tenancy, 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. Railroad, at this term. At common law “the fruits accruing during their joint lives would belong to the husband” (Si monton 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’s 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.

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53 S.E. 478, 141 N.C. 95, 1906 N.C. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bynum-v-wicker-nc-1906.

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