R. E. EDWARDS and wife, Annie Belle Edwards,
v.
Floyd J. ARNOLD and wife, Mary N. Arnold, and Bladen County.
No. 611.
Supreme Court of North Carolina.
June 12, 1959.*209 Clark, Clark & Grady, Elizabethtown, for plaintiffs.
Leon D. Smith and Hester & Hester, Elizabethtown, for defendants.
BOBBITT, Justice.
The judgment recites that plaintiffs' motion "for judgment of nonsuit on defendants' cross action" was denied at the close of defendants' evidence but allowed "at the close of all the evidence." Affirmative defenses, not a cross action, were pleaded by defendants. In view of the quoted adjudications, this recital in the judgment would seem only to reflect a ruling by the court that defendants' evidence was not sufficient to require submission of an issue relating to defendants' alleged adverse possession under color of title for more than seven years. Since, for reasons stated below, the cause is remanded for trial de novo, we do not discuss defendants' contention that such issue should have been submitted.
Now we consider the legal effect, if any, of the tax foreclosure proceeding, the principal subject of controversy.
G.S. § 105-392(a) provides, in part, that the certificate of the tax collector, when docketed in the manner prescribed "shall constitute a valid judgment against said property, with the priority hereinbefore provided for tax liens, which said judgment, except as herein expressly provided, shall have the same force and effect as a duly rendered judgment of the superior court directing sale of said property for the satisfaction of the tax lien, * * *" G.S. § 105-392(c) provides, in part, that "execution shall be issued * * * in the same manner as executions are issued upon other judgments of the superior court, and said property shall be sold by the sheriff in the same manner as other property is sold under execution: Provided, that no debtor's exemption shall be allowed; * * *"
According to the deed introduced by plaintiffs, the title to the subject property vested in R. E. Edwards and wife, Annie Belle Edwards, as tenants by the entirety. Davis v. Bass, 188 N.C. 200, 124 S.E. 566, and Johnson v. Leavitt, 188 N.C. 682, 125 S.E. 490, where the distinctive properties and incidents of an estate by the entirety are set forth.
In such estate, the husband and wife are deemed to be seized of the entirety, per tout et non per my. The entire estate is a unit. Neither husband nor wife owns a divisible part. Davis v. Bass, supra; Gray v. Bailey, 117 N.C. 439, 23 S.E. 318.
"Lands held by husband and wife as tenants by the entirety are not subject to levy under execution on a judgment rendered against either the husband or the wife alone, nor can the interest of either be thus sold, because the right of survivorship is merely an incident of the estate, and does not constitute a remainder, either vested or contingent, * * *" Johnson v. Leavitt, supra [188 N.C. 682, 125 S.E. 492]. "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." Bruce v. Nicholson, 109 N.C. 202, 13 S.E. 790, 791.
"During the wife's life the husband has no such interest as is subject to levy and sale to satisfy a judgment against him." Hood v. Mercer, 150 N.C. 699, 64 S.E. 897, 898; Davis v. Bass, supra; Winchester-Simmons Co. v. Cutler, 199 N.C. 709, 155 S.E. 611; General Air Conditioning Co. v. Douglass, 241 N.C. 170, 84 S.E.2d 828.
*210 In Johnson v. Leavitt, supra, a deed executed by husband and wife, tendered as compliance with their contract to sell their estate by the entirety, was held sufficient to convey a good title free and clear of judgment liens against the husband.
True, a joint judgment against both husband and wife constitutes a lien on their estate by the entirety, Finch v. Cecil, 170 N.C. 72, 86 S.E. 992, and their land may be sold under execution to satisfy such judgment, Martin v. Lewis, 187 N.C. 473, 122 S.E. 180, 35 A.L.R. 144. See Southern Distributing Co. v. Carraway, 189 N.C. 420, 127 S.E. 427.
Too, a conveyance by one spouse to another of land owned by them as tenants by the entirety, when the requirements of the law are complied with in the execution thereof, is valid as an estoppel. Jones v. Lewis, 243 N.C. 259, 262, 90 S.E.2d 547, and cases cited. In this connection, see Davis v. Bass, supra, 188 N.C. at page 206, 124 S.E. 566, and cases cited.
Based upon the authorities cited, it must be held that R. E. Edwards had no (divisible) interest in the subject property that was subject to sale under judgment and execution against him alone. Hence, the sheriff's purported sale was void. While his deed to Bladen County purported to convey the property described therein, his authority to convey was limited to that conferred upon him by the judgment, the execution and by his own advertisement and sale.
Persons who assert title under a sheriff's deed made pursuant to a tax foreclosure proceeding under G.S. § 105-392 are charged with notice of what appears in the records comprising such proceeding. City of Wilmington v. Merrick, 234 N.C. 46, 65 S.E.2d 373; Boone v. Sparrow, 235 N.C. 396, 403-404, 70 S.E.2d 204.
Defendants pleaded the limitations prescribed in G.S. § 105-393 and in G.S. § 1-52, subd. 10 in bar of plaintiffs' action. We need not determine whether either of these statutes would apply if the sheriff had advertised and sold the property described in his advertisement. Suffice to say, they do not apply when it appears on the face of the record that all he purported to sell was the right, title and interest of R. E. Edwards therein. Neither Bladen County nor subsequent grantees could succeed to R. E. Edwards' status in respect of an estate by the entirety. As to G.S. § 1-52, subd. 10, as applicable to an action to remove a cloud from a title, see Price v. Slagle, 189 N.C. 757, 765, 128 S.E. 161, and cases cited; Bailey v. Howell, 209 N.C. 712, 184 S.E. 476.
Having decided that, upon the evidence presented, the sheriff's deed was void and conveyed no title, we pass, without consideration, whether the procedure followed in the tax foreclosure proceeding complied with G.S. § 105-392 and whether G.S. § 105-392, in the respect challenged, is unconstitutional. However, it is noted that Annie Belle Edwards was not a party to the tax foreclosure proceeding nor does it appear that she was notified concerning any feature thereof. It is noted further: Nothing in the tax foreclosure proceeding indicates a prior sale of the tax lien for any of the years 1938-1944, inclusive, under G.S. § 105-387. See G.S. § 105-392(a) which authorizes the docketing of certificate (judgment) within prescribed time "following the collector's sale of certificates"; also, see Boone v. Sparrow, supra. Compare G.S. § 105-391(c).
Plaintiffs do not attack the validity of the tax liens. Questions relating to the rights of defendants arising from the payment of taxes constituting liens on the subject property, for which plaintiffs were liable, are not presented by the pleadings or by this appeal.
Upon the evidence presented, we are of opinion, and so hold, that plaintiff Annie Belle Edwards is not barred by the tax foreclosure proceeding or otherwise; and, *211 as to her, the court properly denied defendants' motion for judgment of nonsuit.
Upon the evidence presented, we are of opinion, and so hold, that plaintiff R. E. Edwards is not barred by the tax foreclosure proceeding or otherwise; and, as to him, the court erred in ruling, in effect, that defendants were entitled to judgment of nonsuit.
The facts were not stipulated or otherwise established. The judgment is predicated on evidence rather than on findings. There was no factual basis for a final definitive adjudication of the ultimate rights of the respective parties. It seems appropriate, therefore, that the judgment be vacated and the cause remanded for trial de novo consistent with the law as stated herein.
Error and remanded.