
    LUCY G. HOLTON v. M. O. HOLTON.
    (Filed 31 October, 1923.)
    1. Estates — Entirety—Husband and Wife — Debtor and Creditor — Homestead — Constitutional Law.
    An estate conveyed in entirety in fee to husband and wife is one to which the right of survivorship is applicable, the husband, during the joint estate, having the right of possession and to the rents and profits, though he is not entitled to a homestead therein as against the interest of the wife (C. S., sec. 1667), the title thereto vesting in the one on the death of the other, and not subject to execution for the debts of either during the continuance of the joint estate.
    2. Husband and Wife — Estates by Entirety — Title—Alimony—Statutes— Courts — Judgments—Orders.
    Where husband and wife own land by entireties, the rents and profits of the husband therein may be charged with the support of the wife and the minor children of the marriage upon his abandonment of her, under the provisions of C. S., sec. 1667, and for her counsel fees by chapter 123, Public Laws of 1921, in these proceedings; and to enforce an order allowing her alimony and attorney’s fees, according to the statutes, a writ of possession may issue (C. S., sec. 1668) to apply thereto the rents and profits as they shall accrue and become personalty; and an order for the sale of land conveying the fee-simple title for the purpose of paying the allowance is erroneous.
    Claek, C. J., concurring.
    
      Appeal by plaintiff from Grady, J., at chambers, 10 May, 1923, from Pamlico.
    Some of the essential facts are set forth in the complaint of plaintiff, and are as follows:
    “1. That she and the defendant,' M. 0. Holton, were married on 17 May, 1903, and by said marriage there have been born five children, the oldest of which is now 16 years and the youngest about 3 years of age.
    “2. That the defendant owns several small tracts of land situate in the counties of Pamlico, Craven and Beaufort, which land will be hereinafter described.
    “3. That the defendant, without any just cause or provocation, unlawfully and wrongfully abandoned plaintiff and said children on 1 April, 1922, and plaintiff has heard nothing from said defendant since his abandonment, except that he has departed from the State and when last heard of by plaintiff was living in the State of Georgia.
    “4. That plaintiff is unable to cultivate to advantage any of the lands owned by the defendant, and she is greatly in need of support for herself and five minor children.
    “5. That the plaintiff has no means of support whatever, and she has been advised, informed, and believes that the land and other property owned by the defendant may be subjected by the court to a lien for the necessary subsistence of herself and five minor children.
    “6. That on the 2d day of September, 1922, warrant of attachment was duly issued by the clerk of the Superior Court of Pamlico County, directing and commanding the sheriffs of Pamlico, Craven, and Beaufort counties to attach and safely keep all the property of the said M. 0. Holton, or so much thereof as might be sufficient for a reasonable subsistence for plaintiff and her five minor children.
    “7. That the said sheriffs have made the following inventories, certificates and returns to the clerk of the Superior Court, Pamlico County, on said attachments:
    
      “Inventory of Land — Pamlico County.
    
    “First Tract- — -Containing 12 acres, more or less, being the same land conveyed by Barzilla Holton and wife to Miifin 0. Holton, 6 April, 1921, recorded in register of deeds’ office, Pamlico County, Book, 78, p. 2.
    “Second Tract — -Being the same land conveyed by Barzilla Holton and wife to Miffin 0. Holton, 8 February, 1904, recorded in register of 'deeds’ office, Pamlico County, Book 36, p. 413, containing 75 acres, more or less.
    
      “Third Tract — Being the same land conveyed by C. D. Holton and wife to Miffin 0. Holton and Lucy G. Holton, wife of defendant, M. 0. Holton, 30 August, 1904, recorded in register of deeds’ office, Pamlico County, Bpok 37, p. 265.
    
      "Craven County.
    
    “Fourth Tract — Being the 21-acre tract conveyed by Brazilla'Holton and wife to Miffin 0. Holton, 6 April, 1921, recorded in register of deeds’ office, Pamlico County, Book 78, p. 1, and register of deeds’ office, Craven County, Book 246, p. 2, and being the first tract conveyed in said deed. Excepting from this tract about one acre on the northern end thereof, which is situated in Beaufort County, North Carolina.
    “Fifth Tract — Bounded on the north by the county lines of Craven and Beaufort, and on the west by M. O. Holton, being the undivided right, title and interest of defendant, M. 0. Holton, in said tract, known as the Tunstall undivided land, owned in common by the defendant, M. 0. Holton, and R. 0. Holton et ah.
    
    
      "Beaufort County.
    
    “Sixth Tract — Containing 1% acres, more or less, being the same land conveyed by Willis G. Toler and wife to Miffin 0. Llolton, recorded in register of deeds’ office, Beaufort County, Book 201, p. 517.
    “8. That four of the defendant’s abandoned minor children now need to be in school and are greatly in need of clothing, books, and proper food for the nourishment of their bodies, and many other things; and the plaintiff herself is greatly in need of money with which to buy the necessary comforts for the support of herself and five minor children.
    “Wherefore, plaintiff demands judgment that she be allowed such a sum from the date of abandonment of her by the defendant, her hus band, to the present date, and for a future allowance per month as she may show to the court to be the necessary subsistence for herself and her five minor children; also, for a necessary allowance, for a reasonable counsel fee, for cost, and any other relief to which she may show herself entitled.”
    The record shows that summons was issued and warrants of attachment were properly obtained in accordance with law. The 'court below, at November Term, .1922, rendered judgment, finding that the proceeding was regular. The judgment rendered also says:
    “And it appearing to the court that the plaintiff is the wife of defendant, and that the defendant abandoned plaintiff, his said wife, on the 1st day of April, 1922, since which time he has contributed nothing towards the support of his said wife and five minor children, and that tbe defendant bas fled from tbe State, and when last beard of by plaintiff was residing in tbe State of Georgia: It is, therefore, ordered and adjudged -by tbe court tbat tbe defendant pay to tbe plaintiff, per month, $50, from tbe 1st day of April, 1922, as a necessary subsistence for herself and five minor children, and $100 for expenses and counsel fee.
    “It is further ordered and decreed tbat this judgment, to tbe extent of monthly payments herein decreed during tbe life of this decree shall constitute a lien on all tbe real and personal property of tbe defendant, and tbe said defendant is hereby ordered and directed to execute a deed of trust conveying all bis interest in lands in Pamlico, Craven, and Beaufort counties to C. D. Holton, trustee for plaintiff, to secure tbe performance of this decree; and in default of tbe execution of said deed of trust within ten days from tbe day, 21 November, 1922, then this decree shall operate as conveyance to said C. D. Holton, trustee, with tbe power of sale, and shall be tbe duty of said trustee, after due advertisement under tbe orders and directions of tbe court, to sell so much of said lands as may be necessary to satisfy this decree.
    “In case of default in tbe payments herein required to be made by tbe defendant, then said trustee is. hereby authorized and directed to apply either to tbe resident judge or judge riding tbe Fifth Judicial District for an order for tbe sale of tbe lands hereinafter described, or so much thereof as may appear to tbe court to be necessary for tbe payment of this decree to date.
    “It is hereby ordered by tbe court tbat this judgment shall constitute a lien on tbe following described tracts of land.”
    Tbe same are set forth in tbe complaint, before mentioned, except tbe fourth tract.
    C. D. Holton, trustee, at Fall Term, 1922, of tbe Superior Court of Pamlico County, before Calvert, J., obtained an order of sale of tbe “first,” “fifth,” and “sixth” tracts of land set forth in tbe complaint before mentioned. Tbe proceeds derived from tbe sale to be applied in monthly payments of $50 to plaintiff, and counsel fees, in compliance with former judgment. Tbe trustee made sale of tbe “first tract” and made report as required by tbe order. Tbe land brought $615, and tbe sale was confirmed.
    C. D. Holton, trustee, filed application before Grady, J., bolding court in Pamlico County, at Bayboro, N. C., 10 May, 1923, to sell tbe land hereinafter set forth. This application sets forth in detail tbe sale of tbe “first tract,” amount it brought, and tbe application of tbe fund, showing -that, after paying expenses of sale, attorney’s fee, and reasonable subsistence of $50 per month to plaintiff, tbat on 1 May, 1923, there was only a balance of $10 to be credited on judgment of allowance to plaintiff of $50 for the month of May, 1923. The application was to sell the land to pay the $50 monthly allowance. In the application and order of sale tendered by O. D. Holton, trustee, to Grady, J., to sign, was to sell the following described land, same being the “second tract,” set forth in the complaint, but described by metes and bounds as follows:
    “Beginning at a gum standing on the east side of Upper Broad Creek, in or near the mouth of a branch, and runs thence south 60 degrees east 125 poles to a lightwood stump on the east side of Spight’s Eoad (Simon’s corner); thence south 64 degree west 126 poles to a gum at the head of a branch; then with said branch to the run of Broad Creek; then up said creek to the beginning; containing about 15 acres of land, being the same land conveyed by Barzilla Holton and wife to Miffin O. Holton and wife, dated 8 February, 1904.”
    The application for the sale of this tract of land, and the order tendered by plaintiff to the court below to sign, both allege, “being the same land formerly known as the William H. Holton land and the same land conveyed by Barzilla Holton and ivife to Miffin 0. Holton and wife (italics ours), dated 8 February, 1904.” The complaint indicates that the deed was made to Miffin O. Holton. The present application and order tendered by plaintiff for the court to sign was to sell the land owned by plaintiff and defendant, husband and wife.
    
    The court below refused to sign the order to sell this tract of land, and from the refusal of the court plaintiff excepts and appeals to this Court.
    Certain creditors, who had attached the lands of defendant after the attachment of plaintiff, objected to the order to sell the before-mentioned tract of land.
    
      Z. V. Bawls for plaintiff.
    
    
      A. D. Ward for creditors.
    
   ClaeksoN, J.

From the record we take it that the deed to the land was made to husband and wife, plaintiff and defendant in this cause. The application and order tendered the court so states. The court below, from the application and order tendered, made no error in refusing to sign the order.

“If any husband shall separate himself from his wife and fail to provide her and the children of their marriage with the necessary subsistence, according to his means and condition in life, or if he shall be a drunkard or spendthrift, or be guilty of any misconduct or acts that would be or constitute cause for divorce, either absolute or from bed and board, the wife may institute an action in the Superior Court of the county in wbicb tbe cause o£ action arose, to bave a reasonable subsistence and counsel fees allotted and paid, or secured to ber from tbe estate or earnings of ber busband. Pending tbe trial and final determination of tbe issues involved in sucb action, and also after tbey are determined, if finally determined, in favor of tbe wife, sucb wife may make application to tbe resident judge of tbe Superior Court or tbe judge bolding tbe Superior Courts of tbe district in wbicb tbe action is brought, for an allowance for sucb subsistence and counsel fees, and it shall be lawful for sucb judge to cause tbe busband to secure so much of bis estate or to pay so much of bis earnings, or both, as may be proper, according to bis condition and circumstances, for tbe benefit of bis said wife and tbe children of tbe marriage, having regard also to tbe separate estate of tbe wife. Sucb application may be beard in or out of term, orally or upon affidavit, or either, or both. No order for sucb allowance shall be made unless tbe busband shall bave bad five days notice thereof; but if tbe busband shall bave abandoned bis wife and left the State, or shall be in parts unknown, or shall be about to remove or dispose of bis property for tbe purpose of defeating tbe claim of bis wife, no notice shall be necessary. Tbe order of allowance herein provided for may be modified or vacated at any time, on tbe application of either party or of any one interested. In actions brought under this section, tbe wife shall not be required to file tbe affidavit provided in section 1661, but shall verify ber complaint as prescribed in tbe case or ordinary civil actions.” C. S., cb. 30, sec. 1667; Public Laws 1921, cb. 123. Counsel fees allowed by Public Laws 1921, cb. 123.

“An attachment against tbe husband’s land will lie in favor of tbe wife, abandoned by him, for a reasonable subsistence or allowance adjudged by tbe court, under tbe implied contract that be support and maintain ber, under tbe statute declaring and enforcing it, and under tbe order of court and attachment of tbe husband’s land is basis for the publication of summons. Tbe wife’s inchoate right to alimony makes ber a creditor of her busband, enforceable by attachment, in case of bis abandonment, wbicb puts every one on notice of ber claim and ber priority over other creditors of ber busband.” Walton v. Walton, 178 N. C., 73; White v. White, 179 N. C., 599; Anderson v. Anderson, 183 N. C., 141; Moore v. Moore, 185 N. C., 332.

From tbe facts appearing in this case, tbe land sought to be sold was deeded to husband and wife. It is well settled in this State that when land is conveyed or devised to a busband and wife, nothing else appearing, tbey bold by entirety, and, on the death of either, tbe survivor gets tbe entire estate in the land.” Turlington v. Lucas, at this term {ante, 283).

Neither tbe 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. Bruce v. Nicholson, 109 N. C., 204; Hood v. Mercer, 150 N. C., 699; Bank v. McEwen, 160 N. C., 414; Turlington v. Lucas, sufra.

The interest and control of the husband during the existence of the joint estate or the joint lives of the two parties is well illustrated in what is known as “the flume case.” Dorsey v. Kirkland, 177 N. C., 520.

“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 right in it, which is incident to his own property. He is entitled during the coverture to the full control and the usufruct of the land to the exclusion of the wife.” West v. R. R., 140 N. C., 620.

In the property of' the husband, not held as husband and wife by entireties, with the right of survivorship, the husband cannot, under C. S., 1667, claim homestead or personal property exemptions.

In Anderson v. Anderson, 183 N. C., 143, Adams, J., says that the allowance made under C. S., 1667, is not such a “debt” as would give the husband the right to claim his homestead or personal-property exemption.

It is settled law in this State that the husband has the right of possession of the entire property and' to take all the profits of the estate. The court has the right to assign possession to the wife of a reasonable part of his estate for the support of herself and children, under the statutes of 1868-69, ch. 123, now C. S., 1668, which provides: “In all cases in which the court grants alimony by the assignment of real estate the court has power to issue a writ of possession when necessary, in the judgment of the court, to do so.” This statute seems to have been passed with a view to cases of this kind where the husband has abandoned his wife and gone to parts unknown.

In Crews v. Crews, 175 N. C., 168 (overruling Skittletharpe v. Skittletharpe, 130 N. C., 72), the Court held, in effect, that the judge may direct monthly payments from husband’s estate, which includes his. income from property and his labor, considering his capacity to work. If the realty held in entireties is the sole property of the husband during his life, the proceeds therefrom can be directed by the court to be paid by him for the subsistence of his wife and children, under O. S., 1667, which provides that “the wife may institute an action in the Superior Court of the county in which .the cause of action arose to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.” Real estate held-by the busband by entireties ■ is bis • real estate, for bis life at least, and tbe income thereof is bis earnings from wbicb sucb allotment can be ordered to be paid. Tbis is not a “debt,” in tbe ordinary sense of tbe word, as is said by Adams, J., in Anderson v. Anderson, sufra, but an appropriation or allotment under tbe police power, wbicb protects tbe wife and children from indulgence and becoming a charge upon tbe. public when tbe busband is in actual possession of realty, under whatever title, if by means thereof be receives earnings or income. Tbe possession thus assigned to tbe wife under C. S., 1668 may be rented out to produce an income, or tbe court can order tbe rent, as it shall accrue and become personalty, to be applied to tbe subsistence of tbe wife and children. It is tbe contingency of tbe wife becoming owner if she becomes tbe longest liver, wbicb alone would prevent a sale of tbe property.

Hoke, J., in McKinnon v. Caulk, 167 N. C., 411, said; “Our statute having abolished all survivorship in fee-simple estates, except tbis and estates of trustees without beneficial interest (Revisal, secs. 1579-1580), tbe owners should thereafter bold as tenants in common. It is not a satisfactory answer to tbis position that, tbe right of survivorship having attached at tbe creation of tbe estate, it could not be divested by a decree of divorce subsequently granted. Tbe very question presented is, whether tbis right of survivorship would attach as an inseparable incident or ownership, or was it dependent upon tbe unity of person between tbe two ? And our conclusion on tbis question, drawn from tbe history and nature of tbe estate, is, we think, in accord with right reason and tbe great weight of authority,” quoting several cases, and especially from Stelz v. Shreck, 128 N. Y., 263, where Peckham, J. (subsequently of tbe United States Supreme Court bench), held that,’as an absolute divorce terminates tbe marriage and unity of persons just as completely as death itself, tbe “natural and logical outcome of sucb a state of facts (absolute divorce) is that tbe tenancy by entirety is severed, and, tbis having taken place, each takes bis or her proportionate share as tenant in common without survivorship.” Tbe whole subject is fully discussed and disposed of by Hoke, J., in that case (McKinnon v. Caulk), wbicb is cited and approved in Finch v. Cecil, 170 N. C., 75. In Freeman v. Belfer, 173 N. C., 586, McKinnon v. Gaulle was said to be in accordance with holdings in all other States, except two, upon tbe point that an absolute divorce dissolved tbe entireties and made tbe parties tenants in common. Tbis was cited with approval by Walker, J., in Moore v. Trust Co., 178 N. C., 126, where be says: “A divorce a vinculo, as it destroys tbe unity, will convert tbe estate by entireties into one in common.” See Turlington v. Lucas, supra.

As thus modified, tbe judgment will be affirmed.

Modified and affirmed.

ClaRK, C. J.,

concurring in tbe opinion of tbe Court: It may not be improper to call attention, however," to tbe fact tbat tbe estate by entire-ties was not created in England by any statute, nor bas it been enacted by any statute in tbis State. It was created solely by tbe bolding of tbe courts of England at a time wben there.were no lawyers and when tbe judges were all either priests of tbe Catholic church or monks and a few laymen. Tbe North Carolina act of 1784, by which we abolished joint tenancy, naturally should have been held to abolish tbis, which was a joint tenancy. Certainly, the provision in 'the Constitution of North Carolina providing that married women should hold their property as if single should apply to all cases where property has been given by deed to two persons, for the Constitution forbids any discrimination as to property rights against a wife. It is certainly contrary to the intent of that provision of the Constitution that, as to property given by deed which, if made to any other two .persons, would have created' a tenancy in common, it should be held, if the parties happen to be man and wife, to be the sole property of the husband, with the sole pernancy of all the profits during his life, with the remainder over to the wife, only, if she be the longest liver; and that' otherwise she receives nothing in the property conveyed to her and her husband.

The Court has repeatedly called the attention of the Legislature to the estate by entireties, with the suggestion that it be abolished. The sole effect of its retention, besides the denial of the interest of the wife in the property, is to afford opportunity to parties who may wish to exempt their property from liability for the debts of either husband or wife.

Aside from it being in violation of the spirit and letter of Constitution, Art. X, sec. 6, the estate is invalid, for the reason that it confers an exemption of property thus conveyed to husband and wife against liability for any debt either of the husband or wife, thus giving an unjust and invalid exemption, beyond that which the Constitution gives, of $1,000 in realty and $500 in personalty.

Certainly, as the opinion of the Court says, when the husband has abandoned the wife and left for parts unknown, leaving her and five children destitute and liable to be a charge upon the county, his interest in the property, which is held to be the right to receive the sole profits as long as he lives, should be subjected by decree of the court either to lease or sale, or by the annual appropriation of the profits as they become personalty, to the support of the wife and children whom he has abandoned and left destitute.

The only objection to relief decreed by the 'court in this ease can come from the wife, who has a contingent remainder of the fee, but only in event she should survive him. This objection cannot be made when the wife, as in this case, is making the application that the property, or at least its profits, be applied to the support of herself and her children. She is assenting in advance as fully as her assent is given to such action when a divorce absolute has been granted.

Remembering that this estate has no statutory sanction, but was created by judicial legislation by judges, in a barbarous age, who were not lawyers, there should be no superstitious sanction attached to its retention, especially in view of the statutory and constitutional provisions which have abolished all discrimination as to property rights against married women. There was also a common-law provision, without statutory recognition, either in England or this country, authorizing husbands to chastise their wives “to make them behave themselves,” retained later in this State than perhaps in any other. That was incontinently abolished by this Court when Judge Settle said, in S. v. Oliver, 70 N. C., 61: “We have advanced from that barbarism.” The same should be said of the retention of the survival of this provision, by which the property of the wife is taken from her and given to the husband for his life, and remainder to him in fee if he be the sole survivor.

We had a judicial creation of an estate in an office in Hoke v. Henderson, 15 N. C., 1, originating here by decree of probably our ablest Court, but that proved so contrary, to the spirit of our institutions and so inconvenient in practice that, though it was quoted and approved more than sixty times by this Court, it was absolutely and incontinently disavowed and destroyed in Mial v. Ellington, 134 N. C., 131. There are other instances of similar progress by overruling former decisions not based on statutes. The highest claim made for the common law was that it was flexible, whereas a statute was not and could be changed or abolished by the courts when circumstances required it. It loses all right to this claim if we cannot overrule it as to such an anomaly even when in contradiction to our present legal thought and constitutional provisions as are embodied in this estate, which not only deprives the wife of her half of the property which is guaranteed to her by the Constitution, but exempts it from all liability to the debts of the husband or wife during their joint lives, in defiance of the rights of creditors to subject all property not embraced in the homestead and personal property exemption of the Constitution.  