#### WACHOVIA BANK AND TRUST COMPANY, Executor and Trustee Under the Will of W. L. BLACK, Deceased, v. AGNES MAE BLACK, Widow of Said W. L. BLACK.

(Filed 22 January, 1930.)

*1.*Husband and Wife *G*a — Executor of husband is liable for one-half of amount of joint note given for purchase price of land held by en-tireties.

Where the husband purchases lands and takes title to himself and wife by entireties, and they execute a mortgage on the lands to secure the balance of the purchase price, and the husband dies leaving a will from which his wife dissents: *Held,*as between the wife and the executor of the husband they are liable as joint makers of the note, each for half thereof unaffected by the wife’s dissent from the will, although she takes title to the whole of the lands as the survivor.

3. Same — Husband and wife are jointly and severally liable on joint note given for purchase price of land held by the entireties.

Where the husband and wife are joint makers of a note secured by their mortgage for the balance of the purchase price of lands held by them by entireties, their liabilities on the note are joint and several, C. S., 458, 3041, 3166, and upon the payment of the note by one of them the other may be held liable for contribution, the incidents of the estate not being incidents of the note.

3. Same — Execution against land held by entireties may be had on judgment on joint note given for purchase price.

Under judgment against a husband and wife upon their joint note given for the balance of the purchase price of lands held by them by entireties, execution may be issued against the land so held.

Appeal by plaintiff and defendant from a judgment of *Schench, J.,*rendered at June Term, 1929, of Buncombe, upon an agreed statement of facts submitted as a controversy without action under C. S., 626.

Affirmed.

*Bourne, Parker <& J one® for plaintiff.*

*Fortune & Fortune for defendant.*

Adams, J.

*W.*L. Black and Agnes Mae Black were husband and wife. The husband bought some land and had it conveyed to his wife and himself. Thereupon they executed a deed of trust on real property securing three notes given by them f.or the purchase price. "W. L. Black paid the first two notes, but died leaving the third unpaid. This note was given to Fairy Owens and husband for $3,000, was dated 22 December, 1925, was payable three years after date, was under seal, and was in tbe usual form. It contained the recital, “For value received we promise to pay,” etc.

*220*~W.*L. Black made a will appointing tbe plaintiff bis executor and trustee and bis widow dissented; but tbe dissent, it will be seen, is not decisive of tbe controversy or even material to its determination.

After tbe plaintiff qualified as executor a question arose as to tbe liability of tbe parties to tbe payees of tbe note. Tbe plaintiff contended that Black and bis wife took an estate by tbe entirety and that upon tbe husband’s death tbe wife, as survivor, became tbe sole owner of tbe land and is solely liable on tbe note; or, if not solely liable that she is liable to tbe extent of one-balf tbe amount due. Tbe defendant contended that she is not liable at all, but if liable, in no event for more than one-balf tbe note.

Upon an agreed statement of facts tbe controversy was submitted to tbe Superior Court of Buncombe County and Judge Scbenck adjudged that *W.*E. Black and bis wife, by tbe execution of tbe note became jointly and severally liable, and that as between tbe parties tbe plaintiff is liable to tbe payment of one-balf tbe note; with interest, and that tbe defendant is liable to tbe payment of one-balf, with interest. Both parties excepted to tbe judgment and appealed.

This is an adjudication of tbe liability of tbe makers of tbe note as between themselves, not an adjudication of their liability to tbe payees. In attacking tbe judgment the plaintiff suggests that Mrs. Black acquired title to tbe land (and, indeed, to two other lots which were pur-, chased in like manner and paid for by tbe husband) as tbe trustee of a resulting trust. But this position is not defensible. If a husband purchase land with bis wife’s money and take title in bis own name be will usually be declared tbe trustee of a resulting trust, enforceable by tbe wife; but if be purchase land with bis own money and have tbe title conveyed to bis wife tbe relation between them will raise tbe presumption of a gift or of a provision for her support. *Tyndall v. Tyndall,*186 N. C., 272; *Ricks v. Wilson,*154 N. C., 282; *Arrington v. Arrington,*114 N. C., 116.

Tbe quality of tbe estate by tbe entirety was not affected by Mrs. Black’s dissent from her husband’s will. He knew that if she survived him her title could not be divested by bis testament. *Todd v. Zachary, 45*N. C., 286. As indicated, the only question is tbe liability of the parties *inter se.*

It is unnecessary to summarize the incidents of this anomalous estate. They are comprehensively set forth in *Davis v. Bass,*188 N. C., 200. If tbe note in question bad been reduced to judgment against tbe makers an execution could have been issued against tbe estate which they held by tbe entirety. *Johnson v. Leavitt, 188*N. C., 682. This is so because they held tbe estate under tbe five-fold unity of interest, title, time, possession, and person. Under tbe common-law fiction of a unity of person *221eaeb was seized of tbe whole and not merely of a part of the estate. But it does not follow that the judgment could have been collected only out of the estate by the entirety. The note does not recite a special consideration; it was given “for value received” and was “secured by a deed of trust on real estate.” The makers were primarily liable jointly and severally. C. S., 458, 3041, 3166; *Roberson v.*Spain, 173 N. C., 23. The unity of person is an incident of the estate created by the conveyance to Black and his wife; it is not incident to the note. As the makers were jointly and severally liable, payment of the whole amount by either would entitle the other, or his representative, to contribution — an équity which arises when one of several parties who are liable on a common debt discharges the obligation for the benefit of all. It results that as between themselves each party is liable for one-half the debt, although the whole title is vested in the defendant as the survivor. The judgment is

Affirmed.