Boyd v. Brooks
| Decision Date | 30 October 1929 |
| Docket Number | 100. |
| Parties | BOYD et ux. v. BROOKS et ux. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Johnston County; Grady, Judge.
Action by Geo. W. Boyd and wife against F. H. Brooks and wife, to enjoin defendants from selling under power of sale contained in mortgage two certain tracts of land. From an order dissolving a temporary restraining order as to one tract plaintiffs appeal and from an order continuing the temporary restraining order to final hearing, defendants appeal. Plaintiffs' appeal dismissed, and judgment affirmed on defendants' appeal.
This is an action to enjoin defendants from selling under the power of sale contained in a mortgage executed by the plaintiff Geo. W. Boyd, to the defendant F. H. Brooks, two certain tracts of land situate in Johnston county, North Carolina. The plaintiff Bettie Boyd, wife of the said Geo. W. Boyd, did not sign said mortgage. Both said tracts of land are conveyed by said mortgage to the said F. H. Brooks. The notes secured by said mortgage were executed by the said Geo. W. Boyd and are payable to the defendants. The consideration for said notes is part of the purchase money for one of said tracts of land. This tract of land was conveyed to the said Geo. W Boyd by the defendants, and contains 330 acres. It is conceded that the mortgage was valid as a conveyance of said tract of land, at the date of its execution, notwithstanding Bettie Boyd, wife of the said Geo. W. Boyd, did not sign the same. C. S. § 4101.
At and prior to the date of said mortgage, the plaintiffs, Geo. W Boyd and his wife, Bettie Boyd, occupied the other tract of land conveyed by said mortgage as their home. This tract of land contains 54.75 acres, and is owned by the plaintiff Geo. W. Boyd. The residence which was occupied by the plaintiffs at and prior to the date of said mortgage, together with other buildings used in connection therewith, is located on this tract of land. After the execution of said mortgage, the plaintiffs moved from said tract of land to the tract of land which the said Geo. W. Boyd had purchased from the defendants, and thereafter occupied the same as their home. The 54.75-acre tract had not been allotted to the said Geo. W. Boyd as his homestead, in accordance with the provisions of the Constitution of this state. Plaintiffs allege, however, that said tract of land, at the date of said mortgage, was the "home site" of the said Geo. W. Boyd, as defined in C. S. § 4103.
Upon the allegations of their complaint, plaintiffs pray judgment, not only that defendants be enjoined permanently from selling, under the power of sale contained therein, the lands described in the mortgage from Geo. W. Boyd to F. H. Brooks, but also that the notes described in said mortgage be declared void, and ordered canceled, and that plaintiffs have such other and further relief, both specific and general, as they may be entitled to. Defendants in their answer denied the material allegations of the complaint, upon which plaintiffs pray judgment. Plaintiffs prayed judgment that, in any event, it be ordered and decreed that no deed which may be made by the defendant F. H. Brooks, under the power of sale contained in said mortgage, shall be effective to pass to the grantee the right to possession of or the title to the tract of land containing 54.75 acres during the lifetime of the plaintiff Bettie Boyd.
The issues of fact arising on the pleadings have not been tried or determined. The action was heard upon an order to show cause why a temporary restraining order procured herein by the plaintiffs should not be continued to the final hearing. Defendants resisted a continuance of said order, and moved that same be dissolved and vacated.
The court was of opinion, after hearing the evidence and the argument of counsel, that plaintiffs were not entitled to a continuance of the restraining order, and in accordance with said opinion the said restraining order was dissolved and vacated. The court was further of the opinion, however, that upon the admissions in the pleadings, with respect to the 54.75-acre tract of land, conveyed thereby to the defendant F. H. Brooks, the mortgage executed by the plaintiff Geo. W. Boyd, without the voluntary signature and assent of the wife, Bettie Boyd, signified on her private examination according to law, by reason of the provisions of C. S. § 4103, was not valid as a conveyance to pass possession of or title to said tract of land to the defendant F. H. Brooks, during the lifetime of the said Bettie Boyd, and that no deed executed pursuant to the power of sale in said mortgage to a purchaser at a sale made thereunder will be effective to pass possession or title to such purchaser during the lifetime of the said Bettie Boyd, and in accordance with said opinion it was considered, ordered, and decreed that no deed which may be executed by the said F. H. Brooks, under the power of sale in said mortgage, shall pass possession of or title to said tract of land to the grantee during the lifetime of said Bettie Boyd, and that such deed shall be of no effect whatever so long as the said Bettie Boyd shall live.
To the order refusing to continue the temporary restraining order to the final hearing, and dissolving and vacating said order, plaintiffs excepted. To the order adjudging and decreeing that no deed from F. H. Brooks, to a purchaser at a sale made by him under the power of sale contained in the mortgage, shall be effective to pass possession of or title to the 54.75 acres during the lifetime of Bettie Boyd, wife of Geo. W. Boyd, and that such deed shall be of no effect whatever so long as Bettie Boyd shall live, defendants excepted.
Both plaintiffs and defendants appealed to the Supreme Court, each assigning error based on their respective exception. After notices of appeal had been duly given by both plaintiffs and defendants, the following entry, over the signature of the judge, was made in the record: "It is agreed that the 330 acres of the Cox farm may be sold under this mortgage, and this appeal only has reference to the 54.75 acres."
Plaintiffs have not formally withdrawn or abandoned their appeal; they caused the same to be docketed in this court. Their counsel filed a brief in their behalf, and argued the appeal when the same was called for hearing in this court.
Abell & Shepard and E. J. Wellons, all of Smithfield, for plaintiffs.
Wellons & Wellons, of Smithfield, and Manning & Manning, of Raleigh, for defendants.
Plaintiffs' only assignment of error upon their appeal to this court is founded on their exception to the order denying their motion that the temporary restraining order be continued to the final hearing, and allowing defendants' motion that said order be dissolved and vacated. The effect of this order was to relieve the defendants from the injunction imposed upon them by the temporary restraining order. Upon failure of plaintiffs to file the bond in the sum fixed by the court (C. S. Supp. 1924, § 858 (a), after they had given notice of their appeal to this court, the defendants were as free to proceed with the sale of the lands described in the mortgage, under the power of sale contained therein, as they were before the temporary restraining order was signed.
Plaintiffs contended that there was error in the order, and appealed to this court, to the end that same might be reversed. Thereafter, and before the appeal was docketed in this court, plaintiffs agreed that the 330-acre tract might be sold by the defendants under the power of sale in the mortgage, and that the only question to be presented to this court was whether there was error in the order with respect to the 54.75 acres. Plaintiffs, therefore, agreed that defendants might do what the order to which plaintiffs excepted permitted them to do, with respect to the 330-acre tract. Whether or not there was error in the order as contended by plaintiffs is now, by reason of plaintiffs' agreement, a moot question, which this court will not consider. The agreement was in effect a withdrawal by plaintiffs of their appeal, and an abandonment of their exception. Whether or not the agreement has any other or further effect than to withdraw plaintiffs' objection to a sale of the 330-acre tract by the defendants, prior to the trial of the issues raised by the pleadings, is not now presented for decision.
Plaintiffs' appeal must be dismissed. An appeal involving only the validity of an order dissolving a temporary restraining order, made upon an order to show cause, will not be considered by this court, when it appears that the act sought to be restrained has already been done, or that the appellant, after noting an exception to the order, has agreed that the act may be done. This court will not reverse an order, although erroneously made, when appellant, notwithstanding his exception thereto, has subsequently agreed that the appellee may proceed in accordance with the order. Kilpatrick v. Harvey, 170 N.C. 668, 86 S.E. 596; Moore v. Monument Co., 166 N.C. 211, 81 S.E. 170; Yates v. Insurance Co., 166 N.C. 134, 81 S.E. 1062.
Defendants' appeal from the order made at the hearing of the order to show cause presents for decision but one question, to wit: Is C. S. § 4103 constitutional and valid? The statute is as follows:
"No deed or other conveyance, except to secure purchase money, made by the owner of a home site, which shall include the residence and other buildings together with the particular lot or tract of land upon which the residence is situate, whether actually occupied by said owner or not, shall be valid to pass possession or title during the life time of the wife without the voluntary signature and assent of his wife, signified on her private...
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