Cawfield v. Owens

• Decision Date: 10 December 1901
• Court: North Carolina Supreme Court
• Parties: CAWFIELD v. OWENS.

40 S.E. 62

129 N.C. 286

CAWFIELD

v.OWENS.

Supreme Court of North Carolina.

Dec. 10, 1901.

MORTGAGE DEED—ADMISSIBILITY — IMPROPER PROBATE — CORRECTION — JOINDER OF WIFE—POWER OF SALE — TWO TRUSTEES— DEATH OF ONE—EFFECT—FAILURE TO ADVERTISE—BURDEN OF PROOF.

1. Where a deed was executed from evidence as not properly probated, and was then immediately reprobated in proper form, it was admissible.

2. Where property was bought in 1854 by the husband, with separate property of the wife, the joinder of the wife in a mortgage leed was not necessary, under Const. 1868, so requiring.

3. Where there are two trustees in a mortgage with power of sale, the power devolves on the survivor.

4. Since regularity of the execution of a power of sale in a mortgage is presumed, the burden is on one who objects thereto to show failure to advertise properly.

Appeal from superior court, Rutherford county; Justice, Judge.

Action by Sarah Cawfield against Amos Owens. Judgment for plaintiff, and defendant appeals. Affirmed.

S.Gallert and E. J. Justice, for appellant

CLARK, J. A deed made in 1854, but improperly probated, was ruled out Thereupon it was immediately reprobated in proper form, and was then introduced in evidence. There is no valid objection to this.

The grantee in said deed executed a mortgage in 1887, without joinder of his wife. The property having been acquired in 1854, and it appearing from her answer, averring that the land was bought by her husband with her separate property, that she was then married, the joinder of the wife was not necessary to bar either dower or homestead. Sutton v. Askew, 66 N. C. 172; Shaffer v. Bledsoe, 117 N. C. 144, 23 S. E. 169.

The mortgage was upon two tracts, and was executed to two persons, with power of sale. One having died, the mortgage sale was made and the deed executed to plaintiff by the survivor. The question presented is whether the survivor could execute the power alone, or was it necessary either to have another trustee appointed, or to have the heirs at law of the deceased trustee or his personal representative made parties in the sale and execution of deed to the purchaser. If there had been only one trustee, formerly a new trustee should have been appointed, and since chapter 147, Laws 1887, the power of sale would be executed by the personal representative. But when, as here, there are two trustees in a mortgage with power of sale, the power devolves upon the survivor. In Peter v. Beverly, 34 U. S. 532, 9 L. Ed. 522, it Is said: "The general principle of the common law laid down by Lord Coke, and sanctioned by many judicial decisions, is that, when the power given to several persons is a mere naked power to sell, not coupled with an interest it must be executed by all, and does not survive. But where the power is coupled with an interest it may be...