144 S.E. 368 | N.C. | 1928
The only question for decision is whether the trial court erroneously dismissed the action as in case of nonsuit.
On 20 December, 1923, D. R. Leary and W. T. Leary, with the joinder of their wives, executed and delivered to Alfred V. Everett and his wife, Zillia Everett, a mortgage on certain real estate to secure two notes amounting to $2,150, one of which was payable 1 January, 1926, and the other 1 January, 1927. Bearing even date is another mortgage on this land which the same mortgagors executed to J. E. Owens and his wife to secure a note for $850 maturing on the first day of January, 1925. Zillia Everett having obtained a decree for partial divorce is not living with her husband. The plaintiff, who is the mother of Alfred V. Everett, alleged that he had assigned to her all his right, title, and interest in the two notes for $2,150; that she owned a one-half interest therein; that Zillia Everett, the owner of the remaining interest, had the notes in her possession; and that the plaintiff was entitled to a sale of the mortgaged premises and to payment out of the proceeds of her interest in the secured notes.
Since it is admitted that the note executed to J. E. Owens and his wife has been paid they have no further interest in the controversy; and as D. R. Leary and W. T. Leary, upon alleging in their answer *13
that they were ready and able to pay their notes as soon as the title thereto should be determined, were permitted by an order of court to pay the full amount of their indebtedness into the office of the clerk and thereupon to be discharged from further liability, they likewise have no interest in the ultimate result of the plaintiff's contention. It was admitted that the notes in question were made to Alfred V. Everett and his wife Zillia. As an estate by entireties in personal property is not recognized in our law these payees held title to the notes as tenants in common. Winchester v. Cutler,
Reversed.