Hinton v. Greenleaf Et Ux

• Decision Date: 10 October 1893
• Court: North Carolina Supreme Court
• Parties: HINTON . v. GREENLEAF et ux.

18 S.E. 56

113 N.C. 6

HINTON .

v.GREENLEAF et ux.

Supreme Court of North Carolina.

Oct. 10, 1893.

Mortgage by Husband and Wife — Principal and Surety—Discharge of Sureties. Where a husband and wife include in a trust deed as security for the debt of the husband not only property of the husband, but the separate property of the wife, her property occupies the position of a surety, and will be dis-charged by a valid agreement by the creditor with the husband without the knowledge of the wife for a postponement for a definite period of the sale of the property included in the deed, there being no reservation in such agreement of the creditor's rights against the wife.

Appeal from superior court, Pasquotank county; John Gray Bynum, Judge.

Action by John L. Hinton against H. T. Greenleaf and wife. Judgment for plaintiff. Defendants appeal. Reversed.

Grandy & Aydlett and P. H. Busbee, for appellants.

W. D. Pruden, for appellee.

SHEPHERD, C. J. It is settled by abundant authority that, "where a husband mortgages his property for his debt, and in the same mortgage the wife conveys her own separate property as security for the same debt, her property so conveyed will be treated in all respects as a surety, * * * and will be discharged by anything that would discharge a surety or guarantor who was personally liable." 1 Brandt, Sur. § 32; Cross v. Allen, 141 U. S. 528, 12 Sup. Ct. Rep. 67; Spear v. Ward, 20 Cal. 659; Gahn v. Niemcewicz, 11 Wend. 312; Bank v. Burns, 46 N. Y. 170; Bish. Mar. Worn. 604; Jones, Mortg. 114; Gore v. Townsend, 105 N. C. 228, 11 S. E. Rep. 160: Purvis v. Carstarphan, 73 N. C. 575. The deed in trust in the present case was made for the purpose of securing the payment of certain indebtedness of the husband, H. T. Green-leaf, evidenced by his notes executed to C. W. Grandy, Jr. The deed conveys certain property of the said Greenleaf, and also the real estate of the wife; the latter alone being the subject of this controversy. It plainly appears from the said instrument that the property of the wife was conveyed as additional security for the indebtedness of the husband, and there can be no question as to the trustee, the cestui que trust, Grandy, and his assignee, Hinton, being affected with notice thereof. There is evidence tending to show that Grandy, before assigning the notes, and after they were due, entered Into a valid agreement with Greenleaf to postpone the sale of the property contained In the deed of trust for a definite period. There Is also evidence tending to show a similar agreement on the part of Hinton, the assignee, under which a sale of the said property was to be postponed for four years. These contracts of forbearance were made without the knowledge or assent of Mrs. Greenleaf, and, In our opinion, resulted in a discharge of her property from all liability under the said deed of trust. This property occupied, as we have seen, the position of a surety, and It is common learning that "time or forbearance given by the creditor to the principal debtor by a coutract which binds him In law, and would bar his action against...