68 N.C. 183 | N.C. | 1873
(184) The original was a proceeding supplemental to execution, instituted by the defendant in this action to condemn to his use a certain debt, owing by one Blackwell, as is alleged, to S.E. Williams, against whom the defendant had a judgment. The debt owing by Blackwell was claimed by the plaintiff, the wife of Williams. His Honor condemned the debt to the use of the defendant, and at Fall Term, 1871, having refused to vacate that judgment, the plaintiff appealed.
Other facts relating to the point decided are stated in the opinion of the Court. It appears that Ann Williams, who seeks to be heard in this proceeding, became seized and possessed of a parcel of land in Cherokee County in 1855.
In 1862 she intermarried with the defendant, S.E. Williams, and in 1869 she with her husband, contracted to sell the said lands to one Blackwell, he giving bonds for the payment of the purchase-money, and they giving bonds to make title when the purchase-money should be paid. The said Williams and wife then removed to the State of Tennessee, and one Greene, the plaintiff in the action, to which this proceeding is supplemental, having theretofore recovered a judgment against the said S.E. Williams, procured an order from the Court directing Blackwell to appear and answered that he owed the defendant, S.E. Williams. Blackwell answered that he owed the said S.E. Williams about $200, being the balance due on the purchase of the said lands; and thereupon the Court ordered Blackwell to pay the judgment in favor of Greene. The said Ann Williams makes affidavit that all of these proceedings occurred while she and her husband were absent from *133 the State, and that she knew nothing of the same until some time thereafter.
There was error in the order directing Blackwell to pay money, due in equity to the wife, in discharge of a debt of her husband.
The fact that she permitted the bonds from Blackwell to be given to her husband alone, does not affect the equity which she had in that fund.
No determination of any controversy in relation to that fund could be had without the presence of the wife, and when she applied to be made a party and to have the order of the Court directing Blackwell to pay her money to the plaintiff set aside, the Court again erred in refusing her motion. As she sought relief from an illegal order made in that cause, she was entitled to be heard on motion in (186) the same cause.
The injustice of the order is still more apparent, when we consider its effect upon Blackwell. He simply has a bond for title, and of course the wife will never join in a deed until she receives full payment for her land, and no Court will compel her to do so.
Let it be certified that there is error.
PER CURIAM. Judgment reversed.
Cited: Rodman v. Harvey,
