133 N.C. 76 | N.C. | 1903
This is an action for the recovery of the possession of a tract of land described in the complaint by metes and bounds, “containing by estimation 122 acres, more or less, and being a part of the land known as the Bensboro farm.” The defendants denied that plaintiff was owner of' the land or that they wrongfully withheld possession thereof. The general issue as to plaintiff’s ownership was submitted to the jury. There was evidence tending to show that Peyton-Atldnson, on July 14, 1847, purchased the land in controversy from one Hives; that, upon his death, in a proceeding for partition of his land, a tract known as the “Bensboro-lands,” containing 1,387 acres, was allotted to his son, Benjamin S. Atkinson; that on February 5, 1878, the said Ben-j amin S. Atkinson executed a mortgage conveying the “Bens-boro lands,” containing 1,437 acres, to Mrs. S. Y, Whitehead, for the purpose of securing the payment of a note of $19,200' to be due January 1,1883. Said mortgage was duly recorded. That Benjamin S. Atkinson and his wife, on the — day of'
The legal title vested in Mrs. Whitehead by virtue of the mortgage, the equity of redemption remaining in B. S. Atkinson. The deed executed by Atkinson and wife to Marcellus Moore vested in him the equity of redemption, and by successive conveyances this equitable estate or right vested in the defendants. The defendants, therefore, were necessary parties to the action to foreclose this mortgage in so far as it was sought to affect the title to the land in controversy; They were entitled to a day in Court to the end that they might set up not only all defences that were available to Atkinson, but also to insist that the plaintiff should be compelled to exhaust the remainder of the land conveyed by the mortgage for the payment of the note before resorting to the portion conveyed to them. “The rule of equity is that where one creditor can resort to two funds for the Satisfaction of his debt, and another to only one of the fund, the former shall first resort to the fund upon which the latter has no claim, as by this means of distribution both may be paid. And it is an analagous principle of equity that when a debtor whose lands are encumbered by a judgment sells one portion of it, the creditor, who has a
New trial.