by the curtesy initiate, and if it did so appear, such interest could not be sold to satisfy the judgment. The statute (Code, sec. 1840) so expressly provides: Code, sec. 1838. As to this land, the appellant has no judgment lien to be enforced in or by this action.

The defendants, husband and wife, held the small tract of land conveyed to them, not as joint tenants or tenants in common, but by entireties. In contemplation of law, they were, for such purpose, but one person, and each had the whole estate as one person, and when one of them should die, the whole estate would continue in the survivor. They, by reason of their relations to each other, could not take the fee-simple estate conveyed to them by moieties, but both were seised of the entirety per tout, et non per my. This is so by the common law, and is the settled law of this state: Motley v. Whitemore, 2 Dev. & B. 537; Long v. Barnes, 87 N. C. 329; Todd v. Zachary, Busb. Eq. 286; Simonton v. Cornelius, 98 N. C. 433; Harrison v. Ray, 108 N. C. 215; 23 Am. St. Rep. 57; 2 Black, 182.

The nature of this estate forbids and prevents the sale or disposal of it, or any part of it, by the husband or wife without the assent of both; the whole must remain to the survivor. The husband cannot convey, encumber, or at all prejudice such estate to any greater extent than if it rested in the wife exclusively in her own right; he has no such estate as he can dispose of to the prejudice of the wife's estate. The unity of the husband and wife as one person, and the ownership of the estate by that person, prevents the disposition of it otherwise than jointly.

As a consequence, neither the interest of the husband nor that of the wife can be sold under execution so as to pass away title during their joint lives or as against the survivor after the death of one of them. It is said in Rorer on Judicial Sales, that "no proceeding against one of them, during their joint lives, will, by sale, affect the title to the property as against the other one as survivor, or as against the two during their joint lives. Neither party to such tenancy can sell or convey their (his) interest, for it is incapable of being separated." He cites many authorities to support what he thus says. Indeed, it seems that the estate is not that of the husband or the wife, it belongs to that third person recognized by the law, the husband and the wife. It requires the co-operation of both to dispose of it effectually: Rorer on Judicial Sales, sec. 549; Freeman on Cotenancy, secs. 73, 74; 4 Kent's Com. 362; Simonton v. Cornelius, 98 N. C. 433.

The statute (Code, sec. 435) prescribes that a docketed judgment, directing the payment of money, "shall be a lien on the real property in the county where the same is docketed of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter for ten years from the date of the rendition of the judgment."

The lien thus intended and created does not vest in the judgment creditor any estate or interest in the real property subject to it; it only creates and secures the right of the creditor to have the judgment debt paid out of the proceeds of the sale of the property, made under the ordinary process of execution, or other proper process or order of the court. The lien extends to and embraces only such estate, legal and equitable, in the real property of the judgment debtor as may be sold or disposed of at the time it attached. In Bristol v. Hallyburton, 93 N. C. 384, Justice Ashe, for the court, said: "A sale under an execution, upon a judgment which is a general lien on all the property of the debtor, vests only the interest of the debtor at the time the judgment lien attaches, or such as the debtor might have conveyed by suitable instrument for a valuable consideration. It is limited to and can rise no higher than that [the interest] of [the] debtor; a stream cannot rise higher than its fountain. A purchaser under an execution takes all that belonges to the debtor, and nothing more." It was hence said in that case, that a vested remainder in land might bo sold under execution, but a contingent remainder could not: McKeithan v. Walker, 66 N. C. 95; Hoppock v. Shober, 69 N. C. 153; Dixon v. Dixon, 81 N. C. 323; Dail v. Freeman, 92 N. C. 351. The statute contemplates and intends a lien upon some present subsisting estate, legal or equitable, in the real property of the judgment debtor that may be enforced in some proper way. It would be idle and absurd to intend a lien that could not be made effectual: Freeman on Judgments, sec. 357; Borer on Judicial Sales, sec. 557, and note.

As we have seen, the husband, who is the judgment debtor in this case, had no interest in the land that he could dispose of, nor that was subject to sale under execution or any legal process. A sale would be ineffectual. 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 personal estate, legal or equi

table, any more than a contingent remainder, or any other mere prospective possibility: Bristol. Hallyburton, 93 N. C. 384.

It seems that, at the common law, the husband, by virtue of his marital rights, could dispose of the possession of real estate held by entireties. But however this may be, the statute (Code, sec. 1840) expressly provides that he shall not have power to dispose of his wife's land for his own life or any less term of years without her assent, nor can the same be subject to sale to satisfy any execution obtained against him.

The appellants, therefore, had no lien upon the land, or any part of or interest in it, so far as appears, and the court properly denied their motion to be made a party defendant.

It appears from the affidavit upon which the appellants based their motion, and from the brief of their counsel, that they did not ask to be made a party defendant in the action for the purpose of enforcing their supposed lien and sharing in the funds, the proceeds of the sale of the land, according to their alleged right, but for the purpose of alleging collusion between the plaintiffs and defendants to the prejudice of themselves and other creditors, and to contest the validity of the plaintiff's mortgages and debts secured by them.

The court might properly have denied the motion upon the ground that a party would not be allowed to come into the action for such purpose. The effect of such suggested procedure and practice would be, not to completely determine the action and administer the rights of divers persong who had mortgages of and liens upon the property to be sold, etc., but to allow a party to come into the action and allege a distinct and different cause of action against the plaintiffs and defendants and litigate the same. Such practice is unwarranted, and cannot be tolerated. In such case, the remedy of the complaining party is by an independent action, brought for the purpose, against the plaintiffs and defendante.

Judgment affirmed.

HUSBAND AND WIFE - ESTATE BY ENTIRETIES-POWER OF ONE PARTY TO ENCUMBER OR DISPOSE OF. -— - Where real estate is held by a husband and wife in entirety, it cannot be subjected to the payment of the sole debts of the husband: Town of Corinth v. Emery, 63 Vt. 505; 25 Am. St. Rep. 780, and note; nor can either convey any interest therein without the consent of the other: Enyeart v. Kepler, 118 Ind. 34; 10 Am. St. Rep. 94, and note.

An estate in entirety cannot be sold under execution to satisfy a judgment against the husband: Davis v. Clark, 26 Ind. 424; 89 Am. Dec. 471, and note; Ketchum v. Walsworth, 5 Wis. 95; 68 Am. Dec. 49, and note; see note to Den v. Hardenbergh, 18 Am. Dee. 386–388.

JUDGMENT LIEN- EXTENT AND SCOPE OF. A judgment lien on realty extends no further that the debtor has power voluntarily to transfer or alien. ate it: Coombs v. Jordan, 3 Bland, 284; 22 Am. Dec. 236, and note; and does not constitute property or right in the land itself: Walton v. Hargroves, 42 Miss. 18; 97 Am. Dec. 429; extended note to Filley v. Duncan, 93 Am. Dec. 345. Where the real estate of a judgment debtor is not subject to levy and sale to satisfy the judgment, the judgment lien does not attach: Grimes v. Portman, 99 Mo. 229.

BLAKE V. BLACKLEY.

[109 NORTH CAROLINA, 257.]

SALES-RECOVERY OF PROPERTY OBTAINED BY FRAUD. - Where one induces another to part with his property by a promise to pay cash for it on the same day, showing a check to inspire confidence in his promise, when he does not intend, at the time of making such representation, to pay for the property in money at any time, but intends, after thus getting possession, to credit its value on a claim held by him against the owner or one of the owners, the sale is fraudulent and voidable at the election of such owner, who may maintain detinue, and recover the specific property, or if it cannot be found, he may maintain trover for its wrongful conver sion, consummated by a refusal to surrender it on demand.

FRAUD IN SATISFACTION OF DEBT. A creditor cannot, by practicing a fraud, acquire title to the property of his debtor, even with the purpose of crediting its value on a just debt.

MARRIED WOMEN'S SEPARATE PROPERTY, AND ACTIONS IN RELATION THERETO. In North Carolina, no limit is imposed upon the wife's power to acquire property by contracting with her husband or a third person, and she may maintain an action in relation to property so acquired, either alone or jointly with her husband.

ACTION to recover two horses and one set of harness. The plaintiffs, Blake and wife, and one Wynne entered into an agreement to buy and sell horses, Mrs. Blake to furnish the money, and Wynne to devote his time and attention to the business for one half the profits. Defendant Blackley bought and obtained the possession of two horses and harness belonging to the plaintiff's, by representing to Wynne that he intended to pay cash for them, and by showing him a check on a bank in Raleigh, which he said would be cashed the next morning. Blackley sent the horses and harness away early that morning, and upon being called upon by Wynne for payment, he presented a note executed by Wynne in his favor for $250, and the difference in cash between such note and the purchase

price. Wynne refused to accept the payment offered. Blackley had no money in bank. Other facts appear in the opinion. Judgment for plaintiffs, and defendant excepted and appealed. N. J. Gulley, for the appellant.

John Devereux, Jr., and S. G. Ryan, for the respondents.

AVERY, J. The main question raised by the appeal is, whether, upon the whole of the evidence, in any phase of it, and in the particular aspects presented by the judge below to the jury, the plaintiffs were entitled to recover.

The mere fact, if admitted, that the defendant told a falsehood, or made a promise to pay at a time when he knew he would not, in all reasonable probability, be able to pay, would not invalidate the sale. But if one induces another to part with his goods by a promise to pay cash for them on the same day, showing a check to inspire confidence in his engagement, when, in fact, he does not intend, at the moment of making the representation, to pay for the property in money at any time, but purposes, after getting possession of it by holding out the hope of the immediate receipt of ready cash, to credit its value on a claim held by him against the owner or one of the owners of it, the contract is fraudulent and voidable at the instance of the original owner, and where the owner has been induced to surrender the possession, he may maintain an action in the nature of detinue, and recover the specific property, if to be found, or in the nature of trover for the wrongful conversion consummated by the refusal to surrender it on demand: Bishop on Contracts, sec. 667; Benjamin on Sales, sec. 656, and note 18; Smith v. Young, 109 N. C. 224; 8 Am. & Eng. Ency. of Law, 650; Donaldson v. Farwell, 93 U S. 631.

The representation of the defendant, if the testimony was believed, that he wished to start the horses in the early morning while it was cool, and transferring them from the road. ordinarily traveled to his home from the place of purchase to another way not so well known, in connection with the declaration made to a witness before he had acquired possession of them, that he intended to play a trick on Wynne, were sufficient to warrant the verdict. It was the duty of the judge to submit this testimony, with all of the circumstances, and let the jury pass upon the intent of the defendant, and the defendant has no just ground to complain that the language in which his honor couched the proposition was such as might have misled the jury to his prejudice.