NESBITT et ux.
v.
FAIRVIEW FARMS, Inc.
No. 99.
Supreme Court of North Carolina.
February 24, 1954.*476 George Pennell, Harry C. Martin, Ashville, for plaintiff-appellant.
Guy Weaver, Ashville, for defendant-appellee.
WINBORNE, Justice.
At the outset, it is appropriate to say that in this State it is provided by statute, G.S. § 38-1, that "The owner of land, any of whose boundary lines are in dispute, may establish any of such lines by special proceedings in the superior court of the county in which the land or any part thereof is situated." Petitioners have proceeded under this statute.
The title to the land is not in issue unless made so by the pleadings. Cole v. Seawell, 152 N.C. 349, 67 S.E. 753. Here the petitioners allege in their petition that they are the owners of a certain tract of land, that defendant is the owner of certain lands adjoining the lands of petitioners, and that defendant disputes certain boundary lines of petitioners' land. On the other hand, while defendant, answering, does not deny the allegations of ownership set out in the petition "except with respect to lappages and infringements upon the lands owned by the defendant", it joins petitioners in a desire to have the lines between petitioners and defendant properly and correctly located. Thus the title is not really in dispute. See Roberts v. Sawyer, 229 N.C. 279, 49 S.E.2d 468; Clark v. Dill, 208 N.C. 421, 181 S.E. 281; Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501.
Now, while appellants assign as error each of the matters to which the several exceptions shown relate, they state, in their brief filed here, these as the questions involved: Did the trial judge err (1) "in his findings of fact Nos. 1, 2 and 4?", and (2) "in overruling plaintiffs' motion to reject" the second survey?". Careful consideration of the record, and applicable principles of law, leads to negative answers.
These questions are to be, and are considered in the light of the admitted fact that appellants, petitioners or plaintiffs, as they are interchangeably designated in the record on this appeal, acquired title to the land, to which they assert ownership, by a deed made to them as husband and wife. Such a deed, unless it be otherwise provided therein, vests in the husband and wife an estate by the entireties, or by the entirety, with right of survivorship, as at common law. And the doctrine of title by entireties between husband and wife as it existed at common law remains unchanged by statute in this State. Decisions of this Court so holding are too numerous to list. But see Davis v. Bass, 188 N.C. 200, 124 S.E. 566, where in opinion by Stacy, J., the Court treats of the incidents and properties of an estate by the entirety. See also Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L.R.A. 722; *477 West v. Aberdeen & R. F. R. Co., 140 N.C. 620, 53 S.E. 477; Morton v. Blades Lbr. Co., 154 N.C. 278, 70 S.E. 467; First Nat. Bank v. Hall, 201 N.C. 787, 161 S.E. 484; Moore v. Shore, 208 N.C. 446, 181 S.E. 275.
However, the husband is entitled during coverture to the full possession, control and use of the estate, and to the rents and profits arising therefrom to the exclusion of the wife. See West v. Aberdeen & R. F. R. Co., supra.
In the West case it is stated: "`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 are 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.' 15 Am. & Eng.Enc. (2d Ed.) 849."
And in the West case the Court referred to the ruling in the case of Topping v. Sadler, 50 N.C. 357, 358, that the husband may maintain an action in ejectment, and held that the husband, West, could maintain an action for damages to the land which had been conveyed to husband and wife, and which they held by entireties, and that the wife was not a necessary party. Compare Moore v. Shore, supra. Applying these rulings of the Court to the case in hand, it is clear that the husband, the petitioner, A. W. Nesbitt, being entitled to the possession and control of the estate by the entireties had the right to have the true boundary lines thereof ascertained, and could maintain this proceeding for the establishment of such boundary lines, even without the joinder of his wife. That is, that she is not a necessary party to such proceeding. Topping v. Sadler, supra; West v. Aberdeen & R. F. R. R., supra.
It follows that, having the right to maintain the proceeding for such purpose, the husband had the right to stipulate as to method by which the true boundary line could be ascertained. Hence, in so far as he, the husband, is concerned, the trial judge did not err in the findings of fact and conclusions of law in respect to the stipulation of 21 October, 1952.
The question then arises as to whether on this record the wife, the petitioner, Clara M. Nesbitt, is bound by the said stipulation. And though the record fails to show that she made any such contention in the court below, she contends in this Court that since their land is held as an estate by the entirety, she is not bound by the said stipulation because she did not sign it. This contention is without merit for these reasons: (1) Her interest in the estate by the entirety is not affected. (2) While she is not a necessary party to this proceeding, she is a proper party. And having joined her husband in the institution and prosecution of this proceeding to establish the true boundary lines between their lands and those of defendant, she will not be heard to say that she is not bound by the stipulation her husband made in the course of the proceeding toward accomplishing this end.
The findings of fact made by the trial judge appear to be supported by sufficient evidence, and are binding on this Court. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.
For reasons stated, error is not made to appear in the judgment from which appeal is taken.
Hence, in accordance with this opinion, the court below should put into effect the provisions of G.S. § 38-3(3) and retain the cause only for this purpose.
The judgment below is
Affirmed.