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

April 10, 1906 · Supreme Court of North Carolina
141 N.C. 95


(Filed April 10, 1906).

Tenants by Entireties — Conveyance by Husband Alone— Injunction Against Cutting Timber — Estoppel.

1. While a husband may, by a deed in which his wife does not join, convey an estate by entireties, so as to entitle the grantee to hold during the husband’s life, such deed gives the grantee no right to cut timber on the land.

2. Where a husband and his wife were tenants by entirety of a tract of land and the husband without the joinder of his wife, mortgaged the land and it was sold under the mortgage and plaintiff holds by mesne conveyances from the purchaser at the mortgage sale, the court erred in refusing to continue to the hearing an injunction against the defendants, who are the agents of the husband and his wife, to prevent their cutting the timber on the land.

ActioN by T. M. Bynum against J. M. Wicker and Milo Fields, pending in tbe Superior Court of Moobe County, heayd by consent by Judge Fred Moore, at Wadesboro, on tbe 16tb day of January, 1906, upon a motion by tbe plaintiff to continue a restraining order theretofore granted, to tbe final bearing of tbe cause. From an order refusing to continue tbe injunction to tbe bearing, tbe plaintiff appealed.

U. L. Spence for the plaintiff.

Seawell & McIver for the defendant.

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 *96against 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” (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’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