The first three objections of the defendant may be disposed of with but little discussion. There is no limitation in the statutes as to the time of issuing a summons, and there is no analogy between the performance of this duty and the talcing of a deposition,, as the defendant contends, which cannot be taken except by consent, during a term for the trial of the action, because the party cannot be' before the court and the commissioner at the same time. The summons-may issue at any time, but the return day is dependent on the time of service. Rev., sec. 434 et seq.
The deed appears on its face to have been made on a Valuable consideration as it recites as a part of the consideration the agreement on the part of the plaintiff to purchase all the pulp and acid wood the-defendant would deliver within fifteen feet of the flume at $3 per cord,, and the record shows that the plaintiff has not only ’performed his agreement, but has gone further and has paid the defendant as much as $6 per cord. Institute v. Mebane, 165 N. C., 650.
The probate of the deed to the plaintiff is not in the record, and as-it is not before us we cannot pass on its sufficiency, but if it is correctly Copied in the plaintiff’s brief, which we do not understand the defendant to deny, it conforms to the requirements of the Rev., sec. 998.
This brings us to the principal question debated by counsel, and that is as to the legal effect of the deed of the husband without the joinder of the wife.
The deed, under which the defendant claims, having been made to-him and his wife, they took an estate by entirety, which carried with it the right of survivorship, and neither acting alone could by deed *523destroy this right or affect the estate of the other (Freeman v. Belfer, 173 N. C., 581), but while this is so, during the joint lives of the husband and wife, the husband is entitled to the control and use of the land as his own property.
In West v. R. R., 140 N. C., 620, Chief Justice, delivering the opinion, quotes with approval from 15 A. & E. Ency., 849, as follows:
“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 effect 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 usufruct of the land to the exclusion of the wife.”'
In Bynum v. Wicker, 141 N. C., 96, a mortgage executed by the ■ husband alone was sustained, the Court saying, “This estate by entirety is an anomaly and it is perhaps an oversight that the Legislature has not changed it into a cotenancy, as has been done in so many States. This not having been1 done, it still possesses here the same properties and incidents as at common law. Long v. Barnes, 87 N. C., 333. 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 so as to destroy the right of the other, if survivor, to receive the land itself unimpaired,” and in Greenville v. Gornto, 161 N. C., 342, a lease for ten years made by the husband was held to be valid, and the Court said of the nature of the estate and the rights and powers of the husband during the life of the wife:
“As Brady and his wife held, not as tenants in common or joint tenants, but by entireties, their rights must be determined by the rales of the common law, according to which the possession of the property during their joint lives rests in the husband, as it does when the wife is sole seized. Neither can convey during their joint lives so as to bind the other or defeat the right of the survivor to the whole estate.
“Subject to the limitation above named, the husband has the same rights in it which are incident to his own property.
“By the overwhelming weight of authority the husband has the right to lease the property so conveyed to him and his wife, which lease will be good against the wife during coverture and will fail only in the event of her surviving him.”
If, as appears from these authorities, the husband has the control and use of the property during the life of his wife, and may deal with it as his own, and if he may execute a valid mortgage or a lease for *524ten years, we see no reason for refusing to uphold bis deed, subject to the limitation that all rights thereunder will cease upon his dying before his wife.