North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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March 22, 1978 Civil Procedures; Civil Process; Execution on Property Held by Husband and Wife as Tenants in Common

Subject:

 

Requested By: Mr. Joe Searcy, Chief Deputy Sheriff Rockingham County

 

Question: When an execution is issued on a judgment against the husband alone and the only property to be found is a mobile home, parked on rented space, titled in the name of husband and wife, must the sheriff levy on the mobile home?

 

Conclusion: Yes.

 

The husband and wife are tenants in common of the property and the undivided interest of the husband is subject to seizure under an execution by the sheriff for satisfaction of a judgment. See Insurance Company v. Davis, 68 N.C. 17 (1872).

In Islay v. Stewart, 20 N.C. 297 (1838), the Court said, "We know of no principle of law which forbids a seizure and sale of a defendant's legal interest in undivided chattels. In contemplation of law, it is perfectly distinct from that of his co-tenant."

Though the cases cited are old, I find them to be controlling case law as they have been followed in subsequent cases but not overruled.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General