21 S.E. 110 | N.C. | 1895
The note being in form a joint contract of husband and *120
wife was, within the meaning of the statute, executed with his written consent. Farthing v. Shields,
Here however it is found as a fact that the money which was (201) the consideration of the note, was paid to her and was expended by her in building a house which, of course, enhanced the value of the land sold. It was competent and pertinent as between the parties interested to inquire into the consideration. Flaum v. Wallace, supra;Jeffries v. Green,
The wife died, leaving as her only heir at law the infant petitioner, R. M. Freeman, Jr., who, with his next friend appointed by the court, joins his father, R. M. Freeman, tenant by the curtesy, in the petition to sell the land. The sole question presented by the appeal is whether the mortgage debt, which is a lien upon the land, is to be first discharged out of the purchase-money arising from the sale of the land, and then the present value of the husband's life estate in the residue ascertained and paid to him, or whether the present value of his life estate in the whole fund is to be first determined and the whole, or so much of it as may be necessary, applied to the payment of the debt in exoneration of the interest of the heir at law. The wife was not surety for the husband and her infant heir at law cannot invoke the aid of the principle approved in Weil v. Thomas,
The consideration of the debt having inured to the enhancement (202) in value of the very tract of land now sold, it would be inequitable, when the purchase-money comes into court for division between her husband, as tenant by the curtesy, and her heirs at *121
law, to devote so much of it as is due him in lieu of his life estate to the payment of the unpaid balances on the note, on the ground that she, as surety, had pledged her property for his debt. Atkinson v. Richardson,
For the reasons given the judgment must be reversed and judgment entered below in accordance with this opinion.
Reversed.
Cited: B. L. Asso. v. Black,