First National Bank v. Hall

161 S.E. 484, 201 N.C. 787, 1931 N.C. LEXIS 97

Opinion

Adams, J.

Tenancy by entireties, or by tbe 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, sec. 291; Tiffany, Eeal Property, sec. 194. The husband and wife take the whole estate as one person. Each has the whole; neither has a separate estate or interest; but the survivor of the marriage whether husband or wife is entitled to the entire estate, and the right of the survivor cannot be defeated by the other’s conveyance of the property to a stranger. The provisions of the Constitution relating to married women and the statutes enacted in pursuance thereof made no change in the estate. Jones v. Smith, 149 N. C., 318; McKinnon v. Caulk, 167 N. C., 411; Davis v. Bass, 188 N. C., 201.

At common law the husband was entitled to the use and control of the estate and to all the rents and profits during the marriage and had a right to execute a mortgage on the property to the extent of his common-law interest. With us it is held that these common-law incidents still adhere to the estate. Long v. Barnes, 87 N. C., 330; West v. R. R., 140 N. C., 620; Dorsey v. Kirkland, 177 N. C., 520; Davis v. Bass, supra.

In the case under consideration the husband, S. II. Earnest, had a right to execute a mortgage “to the extent of its worth,” including the rents, profits, and usufruct of the property; but he had no right to encumber the land so as to defeat the interest of the survivor. Upon his death the lien of the mortgage was ipso facto canceled and the entire estate was vested in the survivor. Bynum v. Wicker, 141 N. C., 95; Dorsey v. Kirkland, supra; Trust Co. v. Broughton, 193 N. C., 320.

There was no error in continuing the restraining order to the final hearing.

Judgment affirmed.