The decision of the Court in this cause (106 N.C. 512) was founded on the facts as they then appeared, and it was correctly determined that both the note and mortgage executed by the feme defendant were void, because, as we were then informed, they were executed in this State. The admissions of the parties have now very materially changed their rights and liabilities.
It is conceded that the note sued on was executed in South Carolina; and it is a valid obligation of the feme defendant, since, by the laws of that state, she had power to execute said note and bind herself thereby, as if she were unmarried.
In the complaint, the plaintiffs demand judgment on this note, and upon the facts now admitted they are entitled to such judgment against the maker, Mrs. S. P. Wheeler. Taylor v. Sharp, 108 N.C. 377;Williams v. Carr, 80 N.C. 294. The feme defendant was (235) authorized by the laws of South Carolina to purchase the land, and the execution and delivery of the deed by A. C. Williams vested in her title to it, and this was of course a sufficient consideration to support the promise contained in the note. The mortgage made to secure it is void for the reasons stated in the opinion filed upon the former
hearing of this cause (106 N.C. 512), but the plaintiffs, under the new aspect put upon the matter by the admissions of the parties, have the right to demand the enforcement of the contract made in South Carolina and take judgment for the amount due on the note. The effect of this action on their part will be to leave the title to the land in the feme defendant free from any lien of the alleged mortgage. As the plaintiffs, by this demand of judgment against her, elect not to accept her proffer to surrender the land and annul the contract of purchase, no account of rents or of purchase money paid by her is necessary. Her right is to keep the land. The plaintiff's right is to have judgment against her on the note, provided no valid defense is established on the trial.
ERROR.
Cited: Armstrong v. Best, 112 N.C. 63; Smith v. Ingram, 130 N.C. 106,109; S. c., 132 N.C. 967; Bank v. Granite Co., 155 N.C. 45.
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