131 S.E. 585 | N.C. | 1926
The following findings of fact and judgment was rendered by the court below:
"1. Defendant, C. M. Griffin, on 8 December, 1919, executed and delivered to defendant, J. P. Bunn, trustee, the deed in trust conveying the land mentioned in the pleadings, to secure five notes in the sum of $1,000 each, maturing on 8 December, 1920, 1921, 1922, 1923 and 1924, respectively. Said sum of $5,000 evidenced by said notes was the balance due on the purchase money for said land described in the pleadings and said trust deed was a purchase-money mortgage.
"2. The plaintiff, who is the wife of defendant, C. M. Griffin, joined in the execution of said notes as surety and likewise joined in the execution of said trust deed for the purpose of conveying her inchoate right of dower as collateral security for payment of said notes.
"3. All of said notes have been paid except the sum of $2,250, which is now due thereon, and which balance is now held by the defendant, the National Bank of Rocky Mount, a purchaser in due course for value before maturity. There are also due on said property certain taxes and street paving assessments assigned to and held by said bank. *228
"4. There being a default in the payment of said notes, the defendant, J. P. Bunn, trustee, at the request of the holder thereof, after due advertisement, offered the land described in said trust deed for sale at public auction in strict accord with the terms of said trust deed, on 22 December, 1925, when the defendant, the National Bank of Rocky Mount, became the last and highest bidder in the sum of $7,000.
"5. On the tenth day after said sale, and before the execution of any deed thereunder this action was instituted, and the temporary restraining order herein issued was served on the defendants.
"6. More than ten days have now elapsed since said sale and no advanced bid has been made and no order of resale has been entered by the clerk.
"Upon the foregoing facts the court being of the opinion that the plaintiff is entitled to have said land first sold subject to her dower interest so as to preserve and protect her inchoate right of dower and in so far as possible, free the same from the lien of said trust deed.
"It is ordered and adjudged that the defendants, J. P. Bunn, trustee, readvertise and resell the said property under the terms thereof, first offering for sale said land subject to plaintiff's inchoate right of dower therein; and in the event said property when so sold brings a sufficient amount to pay said debt, including costs of sale, taxes, paving assessments due, the said defendant is forever enjoined and restrained from selling or conveying plaintiff's inchoate right of dower therein. Should said land when so sold fail to bring a sufficient amount to pay the items herein enumerated, then and in that event, said trustee may forthwith at the same time and place sell the tract in fee, including plaintiff's interest therein."
The defendants duly excepted to the judgment, assigned error and appealed to the Supreme Court.
Varser, J., speaking to the subject of dower in Pridgen v. Pridgen,
The land dowable "one-third in value of all the lands, tenements and hereditaments, both legal and equitable, of which her husband was beneficially seized, in law or in fact, at any time during coverture, and which her issue, had she had any, might have inherited as heir to the husband." Chemical Co. v. Walston,
It was argued here that the learned and painstaking judge in the court below, who heard this case, based his decision upon Chemical Co. v.Walston, supra, and held "that the inchoate doweress was entitled to have the trustee first offer the land for sale, subject to her inchoate dower, to ascertain if the mortgage could be retired when so sold; and, in the event of the land failing to bring enough when so sold, it might be sold free from dower."
From a careful reading of the Walston case, supra, it will be noted that case was a controversy without action. All parties were before the Court and the dower was consummate, and Stacy, C.J., carefully sets forth the rights of the widow. At p. 824, it is said: "It therefore follows that in determining the widow's dower, the value of the land, without deducting the mortgage debt, would form the basis of computation. Caroon v. Cooper,
In the present case, the extraordinary remedy of injunction, is sought by plaintiff to stop the doing of a thing authorized by her to be done. In accordance with the statute she joins in a conveyance with her husband. From the finding of facts: "The plaintiff, who is the wife of *230 defendant, C. M. Griffin, joined in the execution of said notes as surety and likewise joined in the execution of said trust deed for the purpose of conveying her inchoate right of dower as collateral security for payment of said notes."
In the deed in trust to J. P. Bunn, trustee, she contracts that "if said indebtedness or any part thereof, shall not be paid in full with all interests at maturity," etc., the holder of any unpaid notes (now the plaintiff) "shall advertise said land for thirty days at the courthouse door in Nash County and three other public places in said county, and sell the same at a time and place named in the notice of advertisement at public auction, for cash (at which sale the owner of said notes shall have full power to bid) and out of the proceeds pay, first whatsoever may be due on notes due 8 December, 1920, 21, 22 and 23, and then note due 8 December, 1924, and all expenses of selling, including five per cent commission on the gross proceeds of sale of all property herein described for his services, and the surplus, if any, pay to the said C. M. Griffin."
In the finding of facts this was done "in strict accord with the terms of said trust deed," etc.
Plaintiff had the right to make this contract in the manner provided by law, which was done and contracted that her inchoate dower right could be sold, which was done in accordance with the contract. She now asks that this contract be rescinded and the land be sold subject to her inchoate dower right in the very teeth of her agreement that the whole be sold. We cannot so hold. It nowhere appears in the record that the land is susceptible of division and asked to be sold in parcels and then as a whole. It appears that it is a city house and lot, and from the dimensions incapable of division for beneficial purposes. What rights she has in the surplus after the payment of the debts is not before us, although she authorizes the trustees to pay the surplus to her husband.
In Leak v. Armfield,
For the reasons given, there was error in the judgment below.
Error.