Lipsitz v. Smith

• Decision Date: 24 September 1919
• Docket Number: 103.
• Parties: LIPSITZ v. SMITH ET AL.
• Court: North Carolina Supreme Court

100 S.E. 247

178 N.C. 98

LIPSITZ v. SMITH ET AL.

No. 103.

Supreme Court of North Carolina

September 24, 1919

Appeal from Superior Court, Bertie County; Connor, Judge.

Action by Lewis Lipsitz against William R. Smith and others. From a judgment directing plaintiff to pay fund into court or give a solvent bond to secure the same, plaintiff excepts and appeals. Appeal dismissed.

Where mortgagee sells land under a power of sale after death of principal mortgagor, the devisees under the principal mortgagor's will are the proper, and usually the sufficient, parties in a suit involving a distribution of the surplus.

Gillam & Davenport, of Windsor, for appellant.

Winston & Matthews, of Windsor, and Martin & Winborne, for appellees.

HOKE J.

On the hearing it was made to appear that in 1915 William R. Smith and his wife, Mary, being indebted to the plaintiff, in order to secure said indebtedness, executed a mortgage on the land of Mary Smith, his wife, with power of sale, and soon thereafter said Mary Smith died, leaving a last will and testament devising her lands in unequal proportion to her husband, her three daughters, Hattie Hardy, Mariah Hardy, and Joe Alfred Hardy, now intermarried with her codefendant Lonnie Perry that said indebtedness being due and unpaid as per contract plaintiff under the power of sale contained in said mortgage sold said land for the price of $2,030, executed a deed for same to the purchaser, applied the proceeds to payment of the amount due on said debt and costs, etc., amounting to $284.45, leaving a balance in his hands of $1,745.55, which plaintiff now holds for distribution among the parties justly entitled to same, and having no other interest in said fund; that William R. Smith, the husband, has acquired the interest in said land devised to two of the daughters, Hattie and Mariah Hardy, and as between William R. Smith and the other daughter, Joe Alfred Hardy Perry, there is a bona fide dispute as to how much of said fund in plaintiff's hands is due to either of said parties, the nature of the dispute being fully set forth in the pleadings; that he cannot with safety pay out this fund to the respective claimants until the correct proportion is determined, etc.

On these facts chiefly relevant we are of opinion that the order directing the payment of money into court was clearly within the power of his honor, and that the same has been providently made.

So far as now appears, and under our decisions applicable, this power of sale contained in the mortgage has been properly exercised, notwithstanding the death of the principal mortgagor. Carter v. Slocomb, 122 N.C. 475, 29 S.E. 720, 65 Am. St. Rep. 714.

The devisees under the will, as holders of the equity of redemption therein, are the proper, and usually the sufficient, parties in a suit involving a distribution of the surplus. Snow v. Warick Institute, 17 R.I. 66, 20 A 94; 27 Cyc. pp. 1498, 1499, 1792; 2 Jones on Mortgages, §§ 1687, 1929-1931. And the proceedings showing that plaintiff is the holder and in possession of the fund, to which he makes no claim, and that defendants are in a bona fide controversy as to their respective interests, the facts would seem to present a clear case for an original bill of interpleader under the old system, and now disposed of by civil action. In such case, not only is it within the court's power to make all...