Hedrick v. Byerly Et Ux
| Decision Date | 24 November 1896 |
| Citation | 119 N.C. 420,25 S.E. 1020 |
| Parties | HEDRICK v. BYERLY et ux. |
| Court | North Carolina Supreme Court |
Limitation OF Actions—Mortgage—Foreclosure — Husband and Wife.
Where a wife mortgages her land to secure a debt of her husband, evidenced by a note, the bar of limitations against an action on the note does not bar a suit to foreclose the mortgage.
Appeal from superior court, Davidson county; Hoke, Judge.
Action by P. A. Hedrick against Eli Byer-ly and wife. There was a judgment for plaintiff, and defendants appeal. No error.
Walser & Walser and R. T. Pickens, for appellants.
Robbins & Raper, for appellee.
This action was commenced on the 6th of August, 1895, to foreclose a mortgage on real estate. The land conveyed was the property of the feme defendant, and the debt that of the husband, evidenced by a sealed promissory note executed by both of the defendants, and payable on the 1st day of November, 1884. A payment was made on the debt on the 8th of September, 1893. The feme defendant requested his honor to hold, as matter of law, "that the land mortgaged being the property of the wife put her interest in position of surety to the debt of the husband; that the demand, as to her, was barred in three years; and that no act of the husband after the three years had run could renew or continue the lien or mortgage on the land of the wife for the debt of the husband." His honor refused to so decide as to the mortgage, and held that the payment made by the husband on the debt within 10 years from maturity would continue the lien of the mortgage. There was no error in this ruling. "it is well settled by repeated decisions of this court that, where a wife joins her husband in a conveyance of her separate property to secure a debt of the husband, the relation which he sustains to the transaction is that ©f surety." Purvis v. Carstarphan, 73 N. C. 581; Gore v. Townsend, 105 N. C. 235, 11 S. E. 160; Hinton v. Greenleaf, 113 N. C. 6, 18 S. E. 56. And it is also true that whatever act which, on the part of a principal, would discharge a surety, would also discharge the property of the wife from liability under a mortgage or deed of trust made to secure the debt of her husband. Hinton v. Greenleaf, supra. But it is to be borne in mind that a married woman cannot, in this state, make a legal contract, either as principal, or as surety for her husband, which will bind her real estate. She can, if she chooses, charge her separate real estate with the payment of...
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...created by the mortgage is not impaired in consequence of the running of the statute of limitations on the debt." In Hedrick v. Byerly, 119 N.C. 420, 422, 25 S.E. 1020, Montgomery, J., said: "The statute of defeats the remedy when the note is sued upon, but it does not discharge the debt, a......
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