43 S.E. 473 | N.C. | 1903
L. C. Marriner and his wife, Lula, on 9 January, (7) 1893, executed to J. W. Blount a mortgage with power of sale conveying a tract of land in Washington County, for the purpose of securing a note for $500. Thereafter, the said Blount transferred and assigned the said note and mortgage to the defendant.
The plaintiff, on 8 October, 1895, recovered judgment in the Superior Court of Washington County against the said Marriner for $975, which judgment was duly docketed in said county. Thereafter, the said Blount died, leaving a last will and testament, appointing Whedbee Blount and Bettie Davenport executors. Thereafter, the defendant, in the name of said executors, and pursuant to the power of sale in said mortgage, advertised the land for sale, and on 17 February, 1902, sold the same for the sum of $500, and received the purchase money. Said *6 executors executed a deed to the purchaser. The defendant, from the said amount, paid his note, and paid to the said Marriner the excess, to wit, $190.50. There was then, and still is, due on the plaintiff's judgment an amount in excess of $190.50. The plaintiff had no notice of said sale or the payment of said sum to Marriner. The defendant had no other notice of the plaintiff's judgment than was afforded by the docketing thereof. Marriner's homestead was allotted to him by the sheriff of said county on 16 June, 1898, in land other than that mortgaged to Blount as aforesaid, and return thereof was duly made to the Superior Court of said county. Marriner is insolvent.
At the conclusion of the testimony, the defendant made a motion, pursuant to the provisions of the act of 1897, as amended by Laws 1899, ch. 131, for judgment of nonsuit. The court denied the motion, and the defendant excepted. His Honor instructed the jury that if they believed the evidence, they should answer the issue in the affirmative, and the defendant excepted.
The action was instituted before a justice of the peace upon (8) the theory that the defendant was liable to the plaintiff in assumpsit, as for money had and received to her use. If the action cannot be maintained upon this theory, the justice had no jurisdiction. We do not think, in any view of the testimony, the justice had jurisdiction. The defendant cannot be said to have received the proceeds of the sale of the land, or any part thereof, to the use of the plaintiff. The legal title to the land was, by the mortgage, vested in the heirs at law of Blount upon the trusts declared in the mortgage. The power of sale vested in him devolved upon his executors pursuant to the provisions of the act of 1887, as amended by Laws 1901, ch. 186. The assignment of the note and mortgage to the defendant did not vest either the title or the power in him. Williams v. Teachey,
The action for money had and received can be maintained only when the money, or property which has been converted into money, is received by the defendant under such circumstances as in good conscience and equity makes it his duty to pay it to the plaintiff. It is because of this duty that the law implies a promise to do so. The judgment (9) creditor has no title to an estate or interest in the land of the judgment debtor; he has a lien thereon which he may enforce either by issuing an execution or by instituting a civil action, in the nature of a bill in equity, to enforce the lien. It is conceded that this lien, under our statute, extends to the equity of redemption. "A judgment creditor has no jus in re or jus ad rem in the defendant's land, but a mere right to make a general lien effectual by following up the steps of the law." Dail v. Freeman,
The Court, in McLean v. Bank, 4 McLean, 430 (U.S. Circuit Court), referring to the rights of subsequent encumbrancers, said: "Those general principles must be admitted, but they can (10) only apply when notice was given to the first mortgagee of the subsequent liens. . . . And there is no proof of actual notice in this case. The bank, in its answer, denies notice, and constructive notice from the recording of the subsequent mortgages is insufficient. The reason of the rule is apparent. The Franklin Bank looks to the property covered by its mortgage for payment, and that being received, not knowing that there are junior mortgagees whose rights may be affected, is indifferent as to the appropriation of the surplus. A notice, then, which puts the party on his guard is essential to make him *8 responsible, and of such importance is this notice that it must be actually given, and not by the recording of a mortgage, which determines the lien." 2 Jones on Mort. (5 Ed.), sec. 1030; 2 Pingree on Mort., sec. 1464; Freeman on Judgments, 349; Black on Judgments, 404.
For the several reasons given, the court should have allowed the defendant's motion to dismiss. In refusing to do so there was error, and the judgment is
Reversed.
Cited: Staton v. Webb,
