Bruce v. . Nicholson

MerrimoN, C. J.: The appellant’s judgment is not against the feme defendant, who is the wife of her co-defendant I. A. Sugg, nor do they seek to have her property — land—devoted to its satisfaction; it is against the defendant husband. The land, except a small tract of four acres, embraced by the mortgages of the plaintiffs, which they seek by this action to foreclose, is that of the feme defendant wife. The Court so expressly finds and declares. The husband has no such interest in her land as is subject to levy and sale to satisfy the appellant’s judgment. It does not appear that he is ten *204 ant by the curtesy initiate, and if it did so appear, such interest could not be sold to satisfy the judgment. The statute {The Code, § 1840) so expressly provides. The Code, § 1838. As to this land, the appellant has no judgment lien to be enforced in or by this action. The defendants, husband and wife, held the small tract of land conveyed to them, not as joint tenants or tenants in common, but by entireties. In contemplation of law, they were for such purpose but one person, and each had the whole estate as one person, and when one of them should die, the whole estate would continue in the survivor. They, by reason of their relations to each other, could not take the fee-simple estate conveyed to them by moieties, but both were seized of the entirety per tout, et non per my. This is so by the common law and is the settled law of this State. Motley v. Whitmore, 2 Dev. & Bat., 537; Long v. Barnes, 87 N. C., 329; Toddy. Zachery, Bus. Eq., 286; Simonton v. Cornelius, 98 N. C., 433; Harrison v. Ray, 108 N. C., 215; 2 Bl., 182. The nature of this estate forbids and prevents the sale or disposal of it, or any part of it, by the husband or wife without the assent of both; the whole must remain to the survivor. The husband cannot convey, encumber, or at all prejudice, such estate to any greater extent than if it rested in the wife exclusively in her own right; he has no such estate as he can dispose of to the prejudice of the wife’s estate. The unity of the husband and wife as one person, and the ownership of the estate by that person, prevents the disposition of it otherwise than jointly. As a consequence, neither the interest of the husband, nor that of the wife, can be sold under execution so as to pass away title during their joint lives or as against the survivor after the death of one of them. It is said in Rorer on Judicial Sales, that “.no proceeding against one of them, during their joint lives will, by sale, affect the title to the property as against the other one as survivor, or as against the two dur *205 ing their joint lives. Neither party to such tenancy can sell or convey their (his) interest, for it is incapable of being separated.” He cites many authorities to support what he thus says. Indeed it seems that the estate is not that of the husband or the wife, it belongs to that third person recognized by the law, the husband and the wife. It requires the co-operation of both to dispose of it effectually. Rorer on Judicial Sales, § 549; Freeman on Cotenancy, §§ 73, 74; 4 Kent, 362; Simonton v. Cornelius, supra. The statute (The Code, § 435) prescribes that a docketed judgment, directing the payment of money, “shall be a lien on the real property in the county where the same is docketed of every person against whom any'such judgment shall be rendered, and wThich he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter for ten years from the date of the rendition of the judgment.” The lien thus intended and created does not vest in the judgment creditor any estate or interest in the real property subject to it; it only creates and secures the right of the creditor to have the judgment debt paid out of the proceeds of the sale of the property, made under the ordinary process of execution or other proper process or order of the Court. The lien extends to and embraces only such estate, legal and equitable, in the real property of the judgment debtor as may be sold or disposed of at the time it attached. In Bristol v. Hallyburton, 93 N. C., 384, Justice Ashe, for the Court, said: “ A sale under an execution, upon a judgment which is a general lien on all the property of the debtor, vests only the interest of the debtor at the time the judgment lien attaches, or such as the debtor might have conveyed by suitable instrument for a valuable consideration. It is limited to, and can rise no higher than that (the interest) of (the) debtor; a stream cannot rise higher than its fountain. A purchaser, under an execution, takes all that belongs to the *206 debtor; and nothing more.” It was, hence, said in that case, that a vested remainder in land might be sold under execution, but a contingent remainder could not. McKethan v. Walker, 66 N. C., 95; Hoppock v. Shober, 69 N. C., 153; Dixon v. Dixon, 81 N. C., 323; Dail v. Freeman, 92 N C, 351. The statute contemplates and intends a lien upon some present subsisting estate, legal or equitable, in the real property of the judgment debtor that may be enforced in some proper way. It would be idle and absurd to intend a lien that could not be made effectual. Freeman on Judgments, § 357; Rorer on Judicial Sales, § 657 and note. As we have seen, the husband, who is the judgment debtor in this case, had no interest in the land that he could dispose of, nor that was subject to sale under execution or any legal process. A sale would be ineffectual. The possibility that the husband might survive his wife and thus become the sole owner of the property, was not the subject of sale or lien. This did not constitute or create any present estate, legal or equitable, any more than- a contingent remainder or any other mere prospective possibility. Bristol v. Hallyburton, supra. It seems that at the common law, the husband, by virtue of his marital rights, could dispose of the possession of real estate held by entireties. But, however this may be, the statute (The Code, § 1840) expressly provides that he shall not have power to dispose of his wife’s land for his own life or any less term of years without her assent, nor can the same be subject to sale to satisfy any execution obtained against him. The appellants, therefore, had no lien upon the land or any part of or interest in it, so far as appears, and the Court properly denied their motion to be made a party defendant. It appears, from the affidavit upon which the appellants based their motion, and from the brief of their counsel, that they did not ask to be made a party defendant in the action *207 for the purpose of enforcing their supposed lien and sharing in the funds, the proceeds of the sale of the land according to their alleged right, but for the purpose of alleging collusion between the plaintiffs and defendants to the prejudice of themselves and other creditors, and to contest the validity of the plaintiff’s mortgages and debts secured by them. The Court might properly have denied the motion upon the ground that a party would not be allowed to come into the action for such purpose. The effect of such suggested procedure and practice would be, not to completely determine the action and administer the rights of divers persons who had mortgages of and liens upon the property to be sold, etc., but to allow a party to come into the action and allege a distinct and different cause of action against the plaintiffs and defendants and litigate the same. Such practice is unwarranted, and cannot be tolerated. In such case the remedy of the complaining party is by an independent action, brought for the purpose, against the plaintiffs and defendants. Judgment affirmed.