The idea that husband and wife are one, or, as generally
expressed, of the unity of the person, does not have its origin in the common law. It dates from the Garden of Eden, when it was declared, “They shall be one flesh” (Gen., 2 :.14)j, and it has been reaffirmed and preserved in the Gospels and the Epistles. “Wherefore they are no more twain, but one flesh” (Matt., 19! :5); “They twain shall be one flesh” (Mark, 10:8) ; “They two shall lie one flesh” (Eph., 5:31).
It is on the doctrine of the Unity of Person that estates by entireties, with the right of survivorship, rest. Motly v. Whitmore, 19 N. C., 537; Topping v. Saddler, 50 N. C., 360; Long v. Barnes, 87 N. C., 334; Harrison v. Ray, 108 N. C., 216; Bruce v. Nicholson, 109 N. C., 204; Gray v. Bailey, 117 N. C., 442; Ray v. Long, 132 N. C., 891; McKinnon v. Caulk, 167 N. C., 412.
The Court says, in Motly v. Whitmore, supra, which is approve! in the other eases cited: “When lands aria conveyed to husband and wife, they have not a joint estate, but they hold by entireties. Being in law but one person, they have each the whole estate as one person; and on the death of either of them the whole éstate continues in the survivor,” and in McKinnon v. Caulk, after citing a number of cases: “A perusal of these and other authorities on the subject will disclose that the estate in its essential features and attributes is made dependent on oneness of person of the husband and wife.”
Perhaps the fullest and clearest statement is that of the present Chief Justice in Harrison v. Ray, 108 N. C., 216, written after the adoption of the present Constitution, in. which, following Pearson, J., 'in Tapping v. Sadler, he advances a step beyond his predecessors and adds a fifth unity to the four common-law unities, that of the unity of the person of husband and wife. He says: “When realty is devised or conveyed to husband and wife, they take by entirety, and upon the death of one the whole belongs to the other by right of survivorship. 2 Bl., 182; Long v. Barnes, 87 N. C., 329; Simonton v. Cornelius, 98 N. C., 433. The act abolishing survivorship in joint tenancies, Act. *5831784, ch. 204 (The Code, par. 1326), does not apply to such, cases. Motley v. Whitemore, 19 N. C. (2 D. and B.), 537; Todd v. Zachery, Busbee’s Eq., 286; Woodford v. Higly, 60 N. C. (1 Winston), 234. Indeed, it is held that a conveyance to husband and wife has a fifth unity added to the four common-law unities recognized in joint tenancy, i. e., unity of person. Topping v. Sadler, 5 Jones, 357; Freeman on Cotenancy and Part., par. 64.” "
These authorities and others Jilso establish the principle that changes as to the property rights of married women brought about by modern constitutions and statutes have neither destroyed nor altered the nature of the estate by entireties.
Hoke, J., speaking for a unanimous Court, said in the McKinnon case: “It has been .held in several well considered decisions of this Court that our Constitution and the later statutes relative to the property and rights of married women have not thus far destroyed or altered the nature of this estate by entireties, a ‘conveyance to a husband and wife,’ Jones v. Smith, 149 N. C., 318; West v. R. R., .140 N. C., 620; Bynum v. Wickham, 141 N. C., 95; Bruce v. Nicholson, 109 N. C., 205; Ray v. Long, 132 N. C., 891.”
There is some conflict in the authorities from other States as to the effect of the Married Woman’s Property Acts on estates by entireties, but the better opinion and weight of authority is in favor of the position adopted by this Court.
The author says in 13 E. C. L., 1101: “The Married Woman’s Property Acts have in some cases in this country been given the effect of abolishing the common-law estate by entireties, and under such a construction a conveyance to a husband and wife creates the same estate in the parties as if it had been made before the coverture; that, being-invested with capacity of taking by entireties, the reason of the rule of the common-law, that they should take by entirety — per tout, not per my — has ceased to exist. This also seems to be the effect given to such statutes in England and Canada. The better opinion of this country, however, is that the operation of these statutes should be limited to the separate property of married women, leaving unaffected and unimpaired the previous law regarding the creation, existence, and essential attributes and consequences of estate by entireties,” and there are more than twenty cases cited in support of the text.
Clark, C. J., calls attention in Bynum v. Wicker, 141 N. C., 86 (1906), to the failure of the General Assembly to change the estate by entireties into a cotenancy, and concludes that in the absence of legislative action the estate possesses the same properties as at common law. He says: “This estate by entirety is an anomaly, and it is perhaps an oversight that the Legislature has not changed it into a cotenancy, *584as bas been clone in so many States. This not having been done, it still possesses here the same properties and incidents as at common law.”
The same learned judge also says in West v. R. R., 140 N. C., 620: “In Long v. Barnes, 87 N. C., 333, it is held that the Constitution, Article X, sec. 6, as to the rights of married woman, did not ‘destroy or change the properties and incidents belonging to the estates’ held by entireties,” and adds, after discussing the incidents and properties of the estates: “These are the incidents and properties of an estate by entirety when (as in this State) there has been no change by statute, and upon the above authorities the plaintiff can maintain this action without joining the wife. She is not entitled to sue for this damage nor to share in the recovery. If any change in the incidents and properties of this anomalous estate is desirable, legislation must be had upon it.”
If, therefore, the estate by entireties rests and is dependent upon the oneness of the person of husband and wife and not upon property rights, and if the changes in the rights of property of married women have not destroyed or affected the nature of the estate, it follows that no decree can change the estate to a tenancy in common, unless it severs the marriage relation and makes the husband and wife two persons and not one.
Does a decree a mensa et thoro have this effect?
A decree a mensa et thoro does not purport on its face to dissolve the bonds of matrimony, and it is in legal effect simply a decree of separation.
As said in Evans v. Evans, 7 L. R. A., 448 (43 Minn.), the marriage relation is merely suspended, not annulled, and in People v. Cullen, 44 L. R. A., 423 (153 N. Y., 629), the parties still remain husband and wife in the eye of the law, and the authorities are practically unanimous in favor of the principle, as appears from the following note to Boykin v. Bain, 85 Am. Dec., 360: “A divorce from bed and board does not put an end to the marriage ties, or destroy the relation of husband and wife; Capel v. Powell, 17 C. B., N. S., 743; Moore v. Barber, 5 Giff., 43; Barber v. Barber, 21 How., 582; Ellison v. Mayor, 53 Ala., 558; Gee v. Thompson, 11 Ann., 657; Kriger v. Day, 2 Pick., 316; Dean v. Richmond, 5 id., 461; Barrere v. Barrere, 4 Johns. Ch., 187; but merely suspends certain of the mutual rights and obligations of the parties: Clark v. Clark, 6 Watts, and S., 85; Barrere v. Barrere, supra; such a divorce having the effect to destroy the -right of cohabitation, and if the parties again live together and become reconciled as husband and wife, the effect of a divorce a mensa et thoro is destroyed, and the marriage relation continued or resumed; Liddell v. Liddell, 22 La. Ann., 9; Gee v. Thompson, 11 id., 657; Hokamp v. Hagaman, 36 Md., 511; *585 Kriger v. Day, 2 Pick., 316; Dean v. Richmond, 5 id., 461; Nathans v. Nathans, 2 Phila., 393; McKarracher v. McKarracher, 3 Yeates, 356; Tiffin v. Tiffin, 2 Binn., 202. In case of divorce a mensa et thoro, tbe parties cannot marry again, as tbe relation of busband and wife bas not ceased; Barber v. Barber, 21 How., 582; Savoie v. Ignogoso, 7 La., 281; Wait v. Wait, 4 N. Y., 95; and for tbe same reason such a decree does not remove incapacity to testify on tbe part of either; Kemp v. Downham, 5 Harr. (Del.), 417.”
We are therefore of opinion, as tbe estate by the entireties rests upon tbe unity of person, and as this estate is not destroyed or affected by tbe statutes relating to tbe property rights of married women, and as a divorce a mensa et thoro does not dissolve marriage, and, therefore, does not destroy tbe unity of person, that it was error to bold that tbe plaintiffs were tbe owners of any part of tbe land in controversy, and that upon tbe death of tbe busband the estate belonged to tbe wife by right of survivorship and descended to tbe defendants as her heirs.
We would be glad to “bend out” in this case and decide in favor of tbe heirs of tbe busband, as the record shows be obtained a divorce a mensa et thoro from bis wife because she bad willfully abandoned him, but as tbe General Assembly after repeated suggestions bas refused to change tbe law, we must declare it as we find it.
Note. — Petruchio was engaged in tbe difficult task of taming a shrew (this was in tbe barbarous times when there were shrews), and be adopted rough measures and intemperate language.
He succeeded where tbe gentler methods of father and sister bad failed, and Shakespeare bas him to say in conclusion:
“He that knows better how to tame a shrew Now let him speak: ’tis charity to show.”