95 N.C. 504 | N.C. | 1886
(Leggett v. Bullock,
Upon these facts his Honor gave judgment in favor of the defendant, to which plaintiff excepted and appealed. By § 1254 of The Code, it is declared that "no deed of trust or mortgage for real or personal estate, shall be valid at law to pass any property as against creditors and purchasers for a valuable consideration from the donor, bargainor or mortgagor, but from the registration of such deed of trust or mortgage," c.
Prior to the passage of this act, a mortgage was valid even against creditors and purchasers, and it was required to be registered (506) for their benefit. But as between the parties, their rights were undisturbed by the act, and they are left as they existed before its passage. *427
There is no principle better settled, than that as between the parties, a mortgage is valid without registration; Leggett v. Bullock,
The same principle must apply to a widow claiming her "year's allowance." It is allotted to her from the crops, stock, and provisions of the deceased in his possession at the time of his death, if there be a sufficiency thereof in value, and if there is a deficiency it shall be made up by the personal representative from the personal estate of the deceased,The Code, § 2117, and "if there be no crop, c., on hand, or a deficiency, the commissioners may allot to the widow any article of personal property of the deceased." The Code, § 2122. Her allowance in any way is to be allotted out of personal estate of the deceased. She does not take under the administrator, for she (507) may have her "year's support" assigned to her before any administration on her husband's estate. The Code, § 2127. She takes the allowance, under and by virtue of the statute, out of the personal estate of her husband. The statute, it is true, gives her a right to her "year's support," against all general creditors, but no better title to the property assigned her than her husband had. She takes it precisely in same plight and manner in which he held it — subject to all the liens and equities that he had attached to it in his hands, except to the lien of a judgment or an execution, bearing teste before the death of her husband,The Code, § 2116. Prior to that act, the right of a widow to her "year's allowance" was subordinate to the lien of a judgment and an execution bearing teste prior to the death of her husband, Grant v. Hughes,
Our opinion is, there was error, and the judgment of the Superior Court is reversed.
This must be certified to the Superior Court of Duplin county, that avenire de novo may be awarded.
Error. Reversed.
Cited: Denton v. Tyson,
(508)