93 S.E. 837 | N.C. | 1917
From the judgment rendered, the plaintiff appealed. The action is brought to subject a certain tract of land to the payment of certain debts secured by mortgage liens thereon, and to foreclose the same. The facts are, that the defendant Dixon and wife executed a mortgage, 5 June, 1903, to J. O. Carr, now the property of J. S. Carr, Mallard Bryant docketed a judgment against Dixon, 31 July, 1906, which, it is admitted, is now barred by the statute of limitations. On 13 April, 1908, Dixon executed a mortgage to Farrior, Sykes Co., in which his wife did not join. On 6 February, 1912, Dixon and wife executed a mortgage to Oscar and Jesse Fussell. On 7 August, 1913, Dixon and wife executed a mortgage to Oscar Fussel. All of the mortgages were duly recorded at the time when dated. The land conveyed was worth less than $1,000, 13 April, 1908, and Dixon owned no other land.
It is contended here that the mortgage to Farrior, Sykes Co., in which Dixon's wife did not join, is void as against the other mortgages and is a fourth lien upon the property. The plaintiff contends that it is not void as against the other mortgages and is a second lien on the property. It is admitted that Dixon's homestead had never been allotted and it is settled by judicial decision that ordinarily in such case the wife's joinder is not necessary to pass title to the homestead. It was first held in Mayo v.Cotten,
It is contended by the plaintiff that the case of Dalrymple v. Cole,
"The utmost this Court has at any time deviated from that proposition has been in those cases where there was a docketed judgment under which the homestead was required to be laid off. This does not affect this case, as the only judgment here is one for $100, which the defendant alleges that it was agreed should be paid out of the purchase money, and the wife's joinder in the mortgage released both the homestead and her dower as to those liens."
We are therefore of opinion that his Honor correctly held, in view of the fact that there was a judgment docketed 13 April, 1908, and which was a lien upon the land at the time of the execution of the subsequent mortgages, that these mortgages have priority over the mortgages to Farrior, Sykes Co., in which the wife did not join, and which, therefore, are void.
The judgment of the Superior Court is
Affirmed.
Cited: Dalrymple v. Cole,