Lanier v. Dawes

121 S.E.2d 857 (1961)

255 N.C. 458

Alma Grimes LANIER, Jean L. Laumana and James Bruce Lanier v. Dene L. DAWES, Charles Burnice Lanier, Jr., William Lee Lanier and Eva Fly Lanier.

No. 241.

Supreme Court of North Carolina.

October 11, 1961.

*860 Thorp, Spruill, Thorp, Trotter & Biggs, Rocky Mount, for plaintiff appellants.

Fountain, Fountain, Bridgers & Horton, Tarboro, for defendant appellees.

WINBORNE, Chief Justice.

The sole assignment of error appearing in the record is to the rendering of the judgment.

An exception to the judgment rendered raises the question as to whether error in law appears upon the face of the record. Indeed, the appeal to the Supreme Court is itself an exception to the judgment, or to any other matter of law appearing upon the face of the record. See Lea v. Bridgeman, 228 N.C. 565, 46 S.E.2d 555; Culbreth v. Britt Corporation, 231 N.C. 76, 56 S.E.2d 15, and cases cited; also Gibson v. Central Mfrs' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R.2d 818; State v. Sloan, 238 N.C. 762, 78 S.E.2d 738; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595; Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271.

Stated briefly, the appellants' contention is this: That the effect of an absolute divorce is to convert an entireties estate for life into a joint estate for life, so that upon the death of one life tenant, the surviving life tenant takes the whole life estate by survivorship as an incident of the estate. With this contention we cannot agree.

An exhaustive analysis of estates by the entirety is set forth by Stacy, J., in Davis v. Bass, 188 N.C. 200, 124 S.E. 566, 567, from which we quote in pertinent part as follows: "When land is conveyed or devised to a husband and wife as such, they take the estate so conveyed or devised, as tenants by the entirety, and not as joint tenants, or tenants in common. Harrison v. Ray, 108 N.C. 215, 12 S.E. 993, 11 L.R.A. 722, 23 Am.St.Rep. 57. This tenancy by the entirety takes its origin from the common law when husband and wife were regarded as one person, and a conveyance to them by name was a conveyance in law to but one person. The estate rests upon the doctrine of the unity of person and, upon the death of one, the whole belongs to the other, not solely by right of survivorship, but also by virtue of the grant which vested the entire estate in each grantee. Long v. Barnes, 87 N.C. 329; Bertles v. Nunan, 92 N.Y. 152. * * * 15. A tenancy by the entirety may exist in lands whether the estate be in fee for life, or for years, and whether the same be in possession, reversion, or remainder (30 C.J. 566); but in this jurisdiction it is held that there can be no estate by the entirety in personal property. Turlington v. Lucas, 186 N.C. 283, 119 S.E. 366. * * * 9. An absolute divorce destroys the unity of husband and wife and therefore converts an estate by the entirety into a tenancy in common. McKinnon v. Caulk, 167 N.C. 411, 83 S.E. 559, L.R.A.1915C, 396." See also Smith v. Smith, 249 N.C. 669, 107 S.E.2d 530; 26 Am.Jur., Husband and Wife, Section 117.

The judgment of the court below is in accordance with these principles and is, therefore,

Affirmed.