Dorset v. Kirkland, 177 N.C. 520, 99 S.E. 407 (N.C., 1919)
Supreme Court of North Carolina.
May 27, 1919.
Appeal from Superior Court, Swain County; McElroy, Judge.
Action by A. T. Dorsey against J. W. Kirk-land. From an order continuing temporary injunction to the hearing, defendant appeals. Affirmed.
Following is probate of deed referred to in opinion:
“North Carolina, Swain County.
“The foregoing annexed deed was this day duly proven before me upon the oath and examination of George Chambers, who, after being by me duly sworn, says that he knows the handwriting of J. W. Kirkland, one of the signers of said deed, and that the signature to said deed is in the own proper handwriting of said J. W. Kirkland, and that he verily believes that said signature is the genuine signature of said J. W. Kirkland.
“Witness my hand and notarial seal this the 15th day of March, 1919. E. C. Monteith, “[Notarial Seal.] Notary Public.
“My commission expires January 13, 1921.”
This is an action to perpetually injoin the defendant from interfering with the operation of plaintiff’s flume, which extended for about 50 feet across defendant’s land.
Plaintiff secured a temporary injunction from Judge McElroy, and upon the hearing upon the notice to show cause why the injunction should not be continued to the hearing the said temporary order was continued
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to the hearing and the facts found by his honor. Defendant thereupon excepted and appealed to the Supreme Court.
In the year 1915 the plaintiff, A. T. Dorsey, purchased a tract of timber land, containing about 1, 700 acres, situated on Chamber’s creek, in Swain county, and lying from three to six miles from the nearest railroad point, for the purpose of conducting a lumbering operation. Immediately after the purchase of the tract the plaintiff negotiated with the several landowners holding property between the tract purchased, and the railroad, for the purchase of a right of way extending from said timber tract to the railroad, as a location for a flume line, over which to transport his lumber, pulp, and acid wood to the railroad for shipment.
In August, 1915, plaintiff purchased from J. W. Kirkland, defendant, and his wife a right of way over two small tracts of land owned by them, for the consideration of $1, and the further consideration that the plaintiff would purchase their pulp and acid wood placed on the flume line at $3 per cord.
At the time this deed was executed it was not acknowledged or placed to record, but was delivered to the plaintiff, who kept it among his papers until after the institution of this action. On the 15th day of March, 1919, the plaintiff procured said conveyance to be proven upon the oath and examination of George Chambers as to the signature of defendant, J. W. Kirkland, and said paper was thereupon registered on March 17, 1919.
Immediately after securing said deed, in the year 1915, plaintiff constructed a flume over said land, and has been ever since said date continuously using the same for the purpose of transporting his lumber and other timber products from his mills to the railroad, without objection or complaint of defendant or his wife.
At the date of the institution of this action the plaintiff was conducting said lumbering operation, and that said operation will continue for a space of about two years before all of the plaintiff’s timber is removed. The plaintiff’s flume is about five miles in length, and the portion of said flume upon defendants’ land is a stretch of not more than 50 feet across the corner of said tracts.
Just prior to the institution of this action the plaintiff procured a warrant to be issued against the defendant, Kirkland, charging him with larceny of lumber from said flume as same was being transported across his land, the defendant being bound to court thereon; and thereafter the portion of the flume crossing the defendant’s land fell down, and when plaintiff’s hands undertook to repair same they were met by the defendant, who forbid them to go upon the property, and the plaintiff instituted this action.
The defendant acquired title to one of the tracts of land on which the flume is located under a deed which conveyed the land, to the defendant and his wife, both of whom are now living; and the deed to the plaintiff, conveying the right of way, was executed by the husband alone, and contains this provision:
“It is further understood and agreed and is a part of this conveyance that the said strip or parcel of land herein conveyed shall revert back and become the property of the parties of the first part, their heirs and assigns, without reconveyance, whenever the said party of the second part shall cease to. use the same for flume line purposes, and such failure shall extend for a period of twelve consecutive months.”
The defendant contends:
(1) That the action ought to be dismissed because the summons was issued during a term of court.
(2) That there is no consideration to support the deed under which the plaintiff claims.
(3) That the deed to plaintiff was improperly probated and ought not to have been admitted in evidence.
(4) That the right of way could not be acquired except by deed, and, as the defendant and his wife held an estate by entireties, the deed of the husband alone to the plaintiff passed nothing.
Frye & Frye, of Bryson City, for appellant.
S. W. Black, of Bryson City, for appellee.
ALLEN, J.  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 taking 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. § 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 15 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, 81 S. E. 1020.
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 Revisal, § 998.
This brings us to the principal question de-
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bated 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 destroy this right, or affect the estate of the other (Freeman v. Belfer, 173 N. C. 581, 92 S. E. 48C, L. R. A. 1917E, 886); 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. Railroad, 140 N. C. 620, 53 S. E. 477, 6 Ann. Cas. 360, Chief Justice Clark, 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 affect the right of the survivor, yet, subject to this limitation, the husband has the rights 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, 53 S. E.
478, 115 Am. St. Rep. 675, 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 been done, it still possesses here the same properties and incidents as at common law. Long v. Barnes.,87 N. C. 333; West v. Railroad, at this term [140 N. C. 620, 53 S. E. 477, 6 Ann Cas. 300]. At common law ‘the fruits accruing during their joint lives would belong to the husband’ (Simonton v. Cornelius, 98 N. C. 437 [4 S. E. 38]; 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 incumber it or convey 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, 77 S. E. 223, a lease for 10 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 rules 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 10 years, we see no reason for refusing to uphold his deed, subject to the limitation that all rights thereunder will cease upon his dying before his wife.