Brodie v. . Batchelor

| N.C. | Jun 5, 1876

In Whitaker v. Elliott, 73 N.C. 186" court="N.C." date_filed="1875-06-05" href="https://app.midpage.ai/document/whitaker-v--elliott-3653061?utm_source=webapp" opinion_id="3653061">73 N.C. 186, Whitaker was the bargainor and Elliott the bargainee, who in payment for the land gave the plaintiff notes of third persons, which he endorsed, and thus made his own. There it was held that these notes were obligations contracted for the purchase of the premises, and that the defendant was not entitled to homestead against their payment.

In this case the plaintiff Brodie was not the bargainor. The defendant purchased of a third person, who has received the purchase-money, executed a deed, and has no cause of complaint. The bargainor is out of the case. The land was bought from A, the money was borrowed from B, transactions independent of each other, made at different dates, and in no wise connected the one with the other.

The language of the Constitution is, "but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises."

It is clear that the obligation must be contracted with the bargainor, and as the consideration for the purchase. The intent of the borrower to make a certain application of the money is not the measure of his liability. When he obtained the money it was his own, unaffected by any trust, and he could apply it or not in payment of his note for the land. It was not a contract of purchase of land, but a contract of borrowing. The consideration for the money was not land, but the note of the defendant with security for its repayment, (54) and the additional promise to make the plaintiff a mortgage of the land, which was void for want of writing.

The defendant is entitled to his homestead as against this debt.

PER CURIAM. Affirmed.

Cited: Lawson v. Pringle, 98 N.C. 453.