Fleming v. Graham

Citation110 N.C. 374,14 S.E. 922
CourtUnited States State Supreme Court of North Carolina
Decision Date19 April 1892
PartiesFleming v. Graham.

Mortgage of Homestead.

Plaintiff brought an action to foreclose a mortgage executed by the husband (mortgagor) alone on the only realty of which he was possessed, which was of less value than the statutory amount allowed for a homestead. There was a prior mortgage on the realty, in which the wife joined, and also a prior judgment lien, on which execution "might issue and make it necessary to have the homestead allotted." Held, that plaintiff could not maintain his action, his mortgage being invalid to convey the debtor's interest in such real estate; Const, art. 10, § 8, providing that "no deed made by the owner of a homestead shall be valid without the voluntary signature and assent of his wife, " and Code, § 503, providing that the sheriff, before levying on any real estate of any resident, shall appraise and lay off the homestead. Following Hughes v. Hodges, 9 S. E. Rep. 437, 103 N. C. 336.

Appeal from superior court, Warren county; H. R. Bryan, Judge.

Action by R. D. Fleming against John Graham. Judgment for defendant. Plaintiff a ppeals. Affirmed.

W. A. Montgomery, for appellant.

Battle & Mordecai, for appellee.

Clark, J. In Mayho v. Cotton, 69 N. C. 289, it is said: "Section 8, art. 10, 1 of the constitution applies only to a conveyance of the homestead after it is laid off." This iscitedand approved in Hughes v. Hodges, 102 N. C. 236, (247,) 9 S. E. Rep. 437, with some reservations, in which it is said that, though no homestead has been allotted, such conveyance cannot be made by the husband without the assent of the wife, if there are judgments against him which constitute a lien upon the land, and upon which executions might issue, and make it necessary to have his homestead allotted. In the present case the defend-ant, at the time of the execution of the mortgage, to foreclose which this action is brought, had no realty except that embraced in this mortgage, which is found by the jury to have been worth $S30. There was a prior mortgage upon it for several hundred dollars, and the defendant was financially embarrassed, and in debt to divers other persons. The mortgage now held by plaintiff was executed by the defendant without his wife joining therein. It was filed for registration in the office of the register of deeds for Warren county on March 5, 1884, and was registered on March 10th. The term of Warren superior court began on 3d March, 1884, and on 6th March, 1884, a judgment in favor of another party was recovered against the defendant for$362. The Code, § 1254, provides that no mortgage shall be valid against creditors of or purchasers from the mortgagor, except from the registration. The registration of the mortgage was on March loth, subsequent, to the rendition of the above judgment. It is true that the Code, § 3654, requires the register to forthwith register a mortgage after its delivery to him. It is unnecessary to consider whether this provision could have the construct!ve effect to date back the registration to the filing; for the Code, § 433, provides that all judgments rendered at any superior court, and docketed during a term thereof, and within 10 days thereafter, shall be deemed to have been...

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23 cases
  • Joyner v. Sugg
    • United States
    • North Carolina Supreme Court
    • May 5, 1903
    ...166, 9 S.E. 554, 4 L. R. A. 178; Hughes v. Hodges, 102 N.C. 236, 9 S.E. 437; Long v. Walker, 105 N.C. 90, 10 S.E. 858; Fleming v. Graham, 110 N.C. 374, 14 S.E. 922; Banking Co. v. Whitaker, 110 N.C. 345, 14 S.E. Davis v. Smith, 113 N.C. 94, 18 S.E. 53; Stern v. Lee, 115 N.C. 426, 20 S.E. 73......
  • Thomas v. Fulford
    • United States
    • North Carolina Supreme Court
    • December 23, 1895
    ...of dower of the wife if she should survive it. A case exactly in point is Hughes v. Hodges, 102 N.C. 236, 9 S.E. 437." In Fleming v. Graham, 110 N.C. 374, 14 S.E. 922, court said: "In Mayho v. Cotton, 69 N.C. 289, it is said that section 8, art. 10, of the constitution applies only to a con......
  • Stokes v. Smith
    • United States
    • North Carolina Supreme Court
    • October 16, 1957
    ...case, though decided in 1916, applied the law as the Court interpreted it, to transactions occurring prior to 1905.) In Fleming v. Graham, 110 N.C. 374, 14 S.E. 922, the Court held that where a judgment debtor made a valid conveyance of his land, it was a waiver of his right to have his hom......
  • Vanstory v. Thornton
    • United States
    • North Carolina Supreme Court
    • May 5, 1893
    ...the common law to a matter unknown to that system of jurisprudence. But through all the decisions of this court, down to the case of Fleming v. Graham, supra, will be found, we think, upon careful examination, a recognition of the fact that this "advantage," as Chief Justice Merrimon aptly ......
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