Den ex dem. Needham v. Branson, 27 N.C. 426, 5 Ired. 426 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 426, 5 Ired. 426

DEN EX DEM. SUSANNAH NEEDHAM vs. LEVI B. BRANSON & AL.

Where a conveyance of land Is made to Jmsband and wife, they do not take interests, either as joint tenants or tenants in common, but they take estates in iee by entireties, and not by moieties. The husband cannot, by his own conveyance, divest the wife’s estate, and, on her surviving him,'she is entitled to the whole estate.

A declaration in ejectment may be against several defendants, holding different parcels of the same tract.

Appeal from the Superior Court of Law of Randolph County, at the Spring Term, 1845, his Honor Judge Caldwell presiding.

On the trial of this ejectment, the plaintiff introduced a deed from the executors of "William Cox to John Needham and his wife Susannah, the lessor of the plaintiff, bearing date the 24th of March 1823, conveying in fee the land set forth in the declaration. A deed of trust was also produced, executed on the same day by the said John Needham and his wife Susan-nah to Hugh Moffitt, conveying the same lands, but as to this deed the said Susannah had never been privily examined. By the provisions of the deed of trust, Maffitt had power to sell the tract conveyed in several parcels, and the plaintiff shewed by deeds of conveyance, that the defendants held directly or by mesne conveyances from the said Maffitt, who had sold the tract according to his power in several parcels. It appeared that the defendants held these respective parcels under separate and distinct conveyances, tho* circumscribed by the lines of the original tract conveyed to the said Moffitt. The plaintiffs also showed, that the defendants were separately in possession of three several parcels of the said tract, so conveyed to them, and were so, when this action was brought. And the plaintiff also shewed that John Needham above men-•ed had died some two or three years before the commencement of this suit.

Upon this evidence a verdict was returned for the plaintiff, subject to the opinion of the court, whether tho defendants could be joined in the same action and the plaintiff maintain this suit. The court, being of opinion that the action could not be maintained, set the verdict aside, and entered a judgment 'of nonsuit, from which the plaintiff appealed.

Morehead for the plaintiff.

Mendenhall and J H. Haughtm for the defendants.

Daniel, J.

The deed from the executors of Cox, dated the 24th of March 1823, conveyed the land to John Needham and Susannah, his wife and their respective heirs. The husband and wife did not take interests in the land, either in joint-tenancy or as tenants in common, but they took estates in fee, by entireties and not by moieties. The husband alone could not, by his own conveyance, divest the wife’s estate or interest. So that, on her surviving him, she was entitled to the whole estate. Co. Lit. 187. Doe on dem. Freestown v. Parrett, 5 Term 652, Doe v. Wilson, 4 Barn, and Alder. 303, 1 Roper on husband and wife, 51, 52. The deed to Moffitt did not convey Mrs. Needham’s interest in the land, as she was not privily examined, as the law directs.

On the second question raised by the defendants, and on which the judge non-suited the plaintiff, to wit, that the interest in the land claimed by the defendants was not a joint interest, but was a several and distinct interest in several distinct portions of the whole tract, as described in the declaration, the judge erred, we think, because the defendants pleaded jointly and tried jointly. The case of Den on demise of Love v. Wilbourn and al. decided at this Term (see ante p.) settles the law upon this point of the case in favor of the plaintiff. The judgment must be reversed, and a judgment rendered for the plaintiff against those defendants, against whom the jury found.

Per Curiam, Judgment below reversed and judgment for the plaintiff-