Den ex dem. Motley v. Whitemore, 19 N.C. 537, 2 Dev. & Bat. 537 (1837)

Dec. 1837 · Supreme Court of North Carolina

19 N.C. 537, 2 Dev. & Bat. 537

DEN ex dem. JOEL F. MOTLEY v. NANCY WHITEMORE.

Inlands conveyed to husband and wife, they have not a joint estate, but hold, by entireties; and upon the death of either of them, the whole estate continues in the survivor, notwithstanding the act of 1784, (see 1 Rev. Stat. c. 43, s. 2,j for abolishing the right of survivorship.

This was an action of ejectment, in which the following facts were submitted to his Honor Judge Saunbers, at Caswell, on the last Circuit. The plaintiff’s lessors claimed title to the land in controversy, by virtue of a judgment, execution, and sheriff’s deed; and produced the records of two judgments, rendered in Caswell County Court, in favour of himself and one Nannally, at July Term, 1833, against the administrators of Louis White-more, deceased. It appeared, that the administrator, among other things, had relied on the plea of fully administered, which had been found for him; and judgments had been signed for the plaintiff’s demands. Writs of scire facias had been sued out thereon against the heirs at law of the said Lewis Whitemore, and judgment rendered upon the same at October Term, 1835, upon which writs of venditioni exponas were issued; and at January Term, 1836, the land was sold, and a deed executed therefor by the sheriff to the plaintiff.

The defendant was the widow of Whitemore, and was in possession of the land sued for; and she claimed to be sole seized thereof by devise from one John Hudnall, her father, in the following words, to wit: “ I give to Lewis Whitemore and his wife, the tract of land whereon I now live.” The defendant was the wife referred to in the devise; and the land devised was admitted to be the same mentioned in the plaintiff’s declaration.

His Honor, upon these facts, being of opinion with the' defendant, a verdict of not guilty was entered in pursuance an agreement between the parties to that effect; and the plaintiff appealed.

W. A. Graham, and J. T. Morehead, for the plaintiff.

Norwood, for the defendant.

Gaston, Judge.

We entirely approve of the opinion expressed by his Honor below. When lands are 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 estate continues in the survivor. This was settled, at least as far back as the reign of Edward the 3rd, as appears from the case on the petition of John Hawkins, as the heir of Joan Ocle, quoted by Lord Coke, 1 Inst. 187 a. (See Buck v. Andrews, 2 Vern. 120. Doe on dem. Freestone v. Parratt, 5 Term Rep. 652.) Our act of 1784, (see 1 Rev. Stat. c. 43, sec. 2,) declaring, that in estates held in joint-tenancy, “ the part or share” of the person first dying shall not go to the survivor, but to the heirs or assignees respectively of the tenant so dying, has no application to a case of this kind. The husband and wife were not joint-tenants, nor had either any share to go to the survivor, or to the heir or assignee of the one dying first.

The judgment is to be affirmed.

Per Curiam. Judgment affirmed.