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111 S.E.2d 904 (1960)

251 N.C. 573

Margaret Fuller PORTER v. CITIZENS BANK OF WARRENTON, INCORPORATED, Mrs. Alice Southerland, Trading as Style Shop, E. E. Gillam, Trading as Gillam Auto Company, and J. B. Martin.

No. 381.

Supreme Court of North Carolina.

January 14, 1960.

*907 Banzet & Banzet, Warrenton, for petitioner.

William W. Taylor, Jr., and Charles T. Johnson, Jr., Warrenton, for respondent.

DENNY, Justice.

The questions for determination on this appeal are as follows:

1. Does an order of a Superior Court Judge, in a pending action under G.S. § 50-16, declaring that an order for alimony pendente lite previously entered in said cause should constitute a lien in futuro on the share to be derived by the defendant husband in the surplus proceeds from a foreclosure sale under a deed of trust on real property owned by husband and wife by the entireties, of itself and without further action by or on behalf of the wife, create a lien on the husband's share therein, the foreclosure sale being consummated after the entry of such order?

2. If so, does such lien have priority over the lien acquired by a creditor of the husband who attached the husband's interest in the surplus proceeds of sale at the time they were paid to the Clerk of the Superior Court by the Trustee, who foreclosed the deed of trust, pursuant to G.S. § 45-21.31?

A judgment cannot be rendered in the Superior Court in favor of one spouse against the other that will constitute a lien on property held by them as tenants by the entireties. Keel v. Bailey, 214 N.C. 159, 198 S.E. 654. Even so, during coverture the husband has the right to the full control of such property and the *908 income therefrom, to the exclusion of the wife. Holton v. Holton, 186 N.C. 355, 119 S.E. 751; Dorsey v. Kirkland, 177 N.C. 520, 99 S.E. 407; West v. Aberdeen & R. F. R. Co., 140 N.C. 620, 53 S.E. 477, 6 Ann.Cas. 360. Therefore, where husband and wife own land by the entireties, the rents and profits therefrom, which belong to the husband, may be charged with the support of his wife. To enforce an order allowing alimony and counsel fees pursuant to the provisions of G.S. § 50-16, the court may issue a writ of possession pursuant to the provisions of G.S. § 50-17, giving the wife possession of property held by her and her husband as tenants by the entireties, in order that she may apply the rents and profits therefrom as they shall accrue and become personalty to the payment of alimony and counsel fees as fixed by the court. Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555. However, the court does not have the power to order the sale of land held as tenants by the entireties, to procure funds to pay alimony to the wife or to pay her counsel fees. Holton v. Holton, supra.

It follows, therefore, under our decisions, that neither the order of Judge Hobgood, making the allowance of alimony pendente lite, nor the order entered by Judge Hall on 4 June 1957, constituted a lien on the house and lot held by the petitioner herein and her husband, George S. Comer, as tenants by the entireties. The interest of George S. Comer in the surplus funds from the foreclosure sale did not become subject to attachment until 12 July 1957 by his creditors or for payment of alimony pendente lite pursuant to the orders made in the action instituted by Margaret Comer (now Porter) against her husband, George S. Comer.

Real estate owned by a husband may be attached and sold for the payment of alimony; and where the husband abandons his wife, leaves the State and his whereabouts are unknown, his real estate or personal property may be attached at the commencement of an action for alimony and a valid judgment obtained against the absent defendant, not in personam but as a charge to be satisfied out of the property seized. Walton v. Walton, 178 N.C. 73, 100 S.E. 176; White v. White, 179 N.C. 592, 103 S.E. 216; Pennington v. Fourth Nat. Bank, 243 U.S. 269, 37 S. Ct. 282, 61 L. Ed. 713.

Moreover, when a husband abandons his wife and leaves the State and the wife obtains a decree for alimony without divorce, the court may appoint a receiver to take possession of the husband's property, both real and personal, and the court may direct the receiver to sell unproductive real estate and to invest the proceeds in order to obtain sufficient income to enable the receiver to pay the expenses of the receivership and the alimony awarded. Lambeth v. Lambeth, 249 N.C. 315, 106 S.E.2d 491.

In the instant case, the petitioner obtained her allotment of alimony pendente lite in an action in which the defendant husband was personally served with summons and in which he personally appeared at the trial and was represented by counsel. However, he departed the State prior to the entry of Judge Hall's order. While Judge Hall's order purported to set aside the interest, estate and equity of George S. Comer in said real estate, as we have heretofore pointed out, it did not constitute a lien on said right, title and interest. The order further purported to secure to the plaintiff, Margaret F. Comer (now Porter), the surplus of the proceeds from the sale of said real estate owned by the parties as tenants by the entireties, but such funds were not directed to be paid by the Trustee, who conducted the foreclosure, into the hands of a trustee or to the Clerk of the Superior Court, to be held in trust for the payment of alimony pendente lite as such payments fell due. Neither was a receiver appointed to handle such funds pursuant to the orders of the court, as was done in Lambeth v. Lambeth, supra.

*909 In Walton v. Walton, supra [178 N.C. 73, 100 S.E. 177], the Court said: "The question presented is the right of the plaintiff to a warrant of attachment as an ancillary remedy to her cause of action. Chapter 24, Laws 1919, prescribes that the wife, abandoned by her husband is entitled `to have a reasonable subsistence allotted and paid or secured to her from the estate or earnings of her husband.' This gives the wife, who has been abandoned, a remedy both in personam and in rem. The attachment is to secure the property, so that it may be held to satisfy the judgment when rendered, and also as a basis for publication of the summons. The wife has always had the remedy of garnisheeing the salary or wages of her husband in such cases, and she is entitled to an attachment of the property for the same reason. Otherwise the defendant, pending litigation, can sell or convey his property, or creditors may attach it for debt, or obtain prior liens by judgment." White v. White, supra; Bernhardt v. Brown, 118 N.C. 700, 24 S.E. 527, 775, 36 L.R.A. 402.

In the case of Summers Hardware Co. v. Jones, 222 N.C. 530, 23 S.E.2d 883, 884, there were numerous judgments against the defendant which had been duly docketed and which constituted liens on the real estate of the defendant. All the judgment liens attached at the same time, when the defendant inherited the real property from his father's estate. The plaintiff, holding a judgment docketed 22 May 1923, brought action thereupon and caused an attachment to be levied upon the defendant's distributive share of the personal estate of his father. The lower court held the plaintiff had a superior lien to the other judgment creditors who were relying upon their duly docketed liens. This Court said: "Since, under C.S. § 614 (now G.S. § 1-234), no lien attaches to personalty by reason of the docketing of the judgment, although such a lien may be acquired by levy, the order * * * sustaining the prior lien of attachment as to the personal property * * * is correct."

It is likewise said in 7 C.J.S. Attachment § 272, p. 450, "Where a judgment has become a lien on property of defendant, before the levy of an attachment on the same property, the judgment creditor will prevail over the attaching creditor; * * *. A judgment creditor who attached the personalty of his debtor is entitled to priority over a judgment creditor who did not attach such property," citing Deeds v. Gilmer, 162 Va. 157, 174 S.E. 37.

As was said in Walton v. Walton, supra, the statute G.S. § 50-16 prescribes that a wife abandoned by her husband is entitled "to have a reasonable subsistence * * * allotted and paid or secured to her from the estate or earnings of her husband." (Emphasis added.)

In Anderson v. Anderson, 183 N.C. 139, 110 S.E. 863, the decree allowed subsistence, expenses and counsel fees, and declared that it should be a lien on defendant's real and personal property. However, in order to secure the allowance authorized under C.S. 1667 (now G.S. § 50-16), the court required the defendant to execute a deed of trust conveying all his interest in real estate in Nash and Edgecombe counties to a trustee for plaintiff to secure the performance of the decree. In the event of failure to execute the said deed of trust within ten days from 30 November 1921, it was provided that the decree would operate as a conveyance to the said trustee with power of sale in default of any payment or part payment thereon, as required by the order. This Court affirmed the judgment. See Sanders v. Sanders, 167 N.C. 317, 83 S.E. 489; Green v. Green, 143 N.C. 406, 55 S.E. 818; Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502; Wood v. Wood, 61 N.C. 538.

In Perkins v. Perkins, 232 N.C. 91, 59 S.E.2d 356, 358, suit was for alimony without divorce under G.S. § 50-16, and for allowance for subsistence and counsel fees pendente lite. Devin, J., later C. J., said: "By adequate statutes and the decisions of this court it has been established in this jurisdiction that in an action for alimony *910 without divorce, upon issuance of summons and the filing of a verified complaint setting forth facts sufficient to entitle the complainant to the relief sought, the Judge of the Superior Court has power to require the payment by the husband of a reasonable amount for the wife's subsistence and counsel fees pendente lite, and the court may enforce its order by attachment against the property of a nonresident or absconding husband without notice, G.S. § 50-16, and in such case may also appoint a receiver to collect the income from the husband's property. Bailey v. Bailey, 127 N.C. 474, 37 S.E. 502; White v. White, 179 N.C. 592, 103 S.E. 216; Holloway v. Holloway, 214 N.C. 662, 200 S.E. 436; Peele v. Peele, 216 N.C. 298, 4 S.E.2d 616; Wright v. Wright, 216 N.C. 693, 6 S.E.2d 555; McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833." (Emphasis added.)

In light of the foregoing authorities, in our opinion, the mere statement in Judge Hall's order, to the effect that the surplus in the sale of the real estate held as tenants by the entireties, which would otherwise belong to George S. Comer, is secured to the plaintiff, without further providing for such proceeds to be impounded and brought into custodia legis, did not give a lien on such funds for payment of alimony, superior to an attachment by a creditor of George S. Comer.

Moreover, the court below found as a fact that the action instituted by the respondent Martin and the judgment rendered therein were in all respects regular. Therefore, we hold that, since the petitioner did not attach these funds, and the court below took no steps to sequester and impound said funds so as to make them immune from attachment, the attachment of the respondent Martin is superior to the order of Judge Hall, with respect to the funds now held in the office of the Clerk of the Superior Court of Warren County in an amount sufficient to satisfy the respondent's judgment.

It will be noted that these funds are not held by the Clerk of the Superior Court pursuant to any order of the court, but were voluntarily paid into his office pursuant to the provisions of G.S. § 45-21.31.

The judgment of the court below is


HIGGINS, J., took no part in the consideration or decision of this case.

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