Grabenhofer v. Garrett

131 S.E.2d 675 (1963)

260 N.C. 118

J. J. GRABENHOFER, Trading as Riviera Furniture Co., Riviera Beach, Florida, Plaintiff, v. Lahoma GARRETT, Defendant.

No. 741.

Supreme Court of North Carolina.

July 19, 1963.

*677 Gerald C. Parker, Liberty, for plaintiff appellant.

Ross & Wood, Graham, for defendant appellee.

BOBBITT, Justice.

The properties and incidents of an estate by the entirety are set forth in Davis v. Bass, 188 N.C. 200, 124 S.E. 566, and in Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490. For a comprehensive exposition, with full citations, see valuable article by Professor Robert E. Lee, "Tenancy by the Entirety in North Carolina," 41 N.C.L.R. 67-100.

Under prior decisions of this Court, defendant has no (divisible) interest in the subject property which, during coverture, is subject to sale under judgment and execution against him alone. Edwards v. Arnold, 250 N.C. 500, 109 S.E.2d 205; Harris v. Carolina Distributing Co., 172 N.C. 14, 89 S.E. 789. Professor Lee, op. cit., p. 84, cites these and other North Carolina decisions in support of the following statements: "In North Carolina a tenancy by the entirety is not subject to levy under execution on a judgment rendered against either the husband or the wife alone. Neither the husband nor the wife has such an interest in an estate by the entirety as can be sold under execution to satisfy a judgment against him or her alone." Also, see Lee, op. cit., p. 86.

During coverture, a judgment against either the husband or the wife is not a lien on land owned by husband and wife as tenants by the entirety. General Air Conditioning Co. v. Douglass, 241 N.C. 170, 174, 84 S.E.2d 828, and cases cited. Hence, their joint deed conveys the land to a purchaser free and clear of the lien of any judgment docketed against either the husband or the wife. Hood v. Mercer, 150 N.C. 699, 64 S.E. 897, and cases cited; Winchester-Simmons Co. v. Cutler, 199 N.C. 709, 155 S.E. 611, and cases cited; Lee, op. cit., p. 87.

In Annotation, "Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt," 75 A.L.R.2d 1172, 1175, this statement appears: "In a majority of jurisdictions, it has been held that under the Married Women's Property Acts the interest of a husband or a wife in an estate by entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses, and if the debtor spouse dies first the survivor takes the entire estate free from the debts of the deceased." The numerous cases cited in support of this statement include decisions of this Court.

Since "the husband, during coverture and as between himself and the wife, has absolute and exclusive right to the control, use, possession, rents, issues, and profits of property held as tenants by the entirety," it was held in Lewis v. Pate, 212 N.C. 253, 193 S.E. 20, cited by plaintiff, that crops raised on land owned by husband and wife as tenants by the entirety belonged to the husband and were subject to levy and sale under execution to satisfy a judgment against him. A sale under execution of said crops, except the portion set apart by appraisers as the judgment debtor's personal property exemption, was ordered. Suffice to say, no question is now presented with reference to crops raised on the subject property.

Plaintiff's motion is made in proceedings supplemental to execution. Defendant was required to appear and answer concerning his property. G.S. § 1-352. Then, if not before, plaintiff was advised as to the subject property and as to its ownership by defendant and his wife as tenants by the entirety.

There is no contention that any person or corporation has property of defendant or is indebted to defendant. G.S. § 1-360 et seq. In this connection, see Cornelius v. Albertson, 244 N.C. 265, 268, 93 S.E.2d 147.

Defendant is in lawful possession of the subject property. If (contrary to our prior decisions) plaintiff's contention that defendant has a divisible interest in the subject *678 property were accepted, it would seem that such interest, except to the extent it would be exempt as a homestead or personal property exemption, would be subject to sale under execution, and such execution sale would constitute plaintiff's remedy. G.S. § 1-315. Thus, whether his said contention is rejected or accepted, plaintiff's motion for appointment of a receiver was properly denied.

Obviously, plaintiff's exception "to the foregoing ruling of the Court" is insufficient to support plaintiff's purported assignment of error relating to certain of the court's findings of fact. However, this Court's decision, which affirms the order of the court below, is not based on any finding of fact referred to in plaintiff's said purported assignment of error.

Affirmed.