78 N.C. 242 | N.C. | 1878
The plaintiff purchased and paid for the land in question and had the deed made to defendant Henry C. Jones, under a verbal agreement that the plaintiff was to hold the deed, and that concurrently with the taking the deed from the vendor to the (243) defendant Henry C. Jones, he and his wife were to execute a mortgage deed to the plaintiff, to secure the purchase money. The defendant *162 Henry C. Jones did execute the mortgage deed and delivered it to the plaintiff, but his wife, the feme defendant, refused to join; and this action is brought to recover judgment for the purchase money, and to have the land sold to satisfy it.
The plaintiff is entitled to his judgment and sale.
The defendants object to the sale for the reason that the deed which was made to Henry C. Jones vested the title in him, although but for a moment, and thereby his wife, the feme defendant, became invested with dower and homestead rights. This is not so, for two reasons:
1. The deed from the vendor to Jones, and his mortgage to the plaintiff, were to be, and were, concurrent acts. And concurrent acts are to be considered as one act. The title did vest, but it did not rest, in Jones, but "like the borealis' race, that flits are you can point its place." And it was as if the title had passed directly from the vendor to the plaintiff. But even if this were not so, and if the deed had been made and delivered to Jones, and he had made no mortgage to plaintiff, yet under the agreement aforesaid, and the plaintiff's money having paid for the land, there would have been an equity in the plaintiff which would have entitled him to call for the legal estate, unaffected by dower or homestead. It was not intended to give the defendant the land, and he paid nothing for it. How, then, can he or his wife claim it? But if this were not so, still —
2. The plaintiff's demand is for the purchase money, as against which homestead rights do not prevail.
The defendants insist that the plaintiff did not pay the purchase money, and thereby become substituted to the rights of the vendor; but that he (plaintiff) loaned the defendant the money with which to pay it, and that the plaintiff's demand is for an ordinary debt. But (244) the fact is stated to be otherwise.
We have not mentioned the intervention of Sion H. Rogers as it was not necessary for elucidation.
PER CURIAM. Affirmed.
Cited: Moring v. Dickinson,