Mcbrayer v. Harrill

Decision Date27 May 1910
Citation68 S.E. 204,152 N. C. 712
PartiesMcBRAYER v. HARRILL.
CourtNorth Carolina Supreme Court

1. Mortgages (§ 90*)—Necessity of Registration.

Although Revisal 1905, § 982, provides that a mortgage shall be a lien only from its registration as between the parties to a mortgage or deed, the instrument is valid without registration; and it is also valid as against the personal representative of the mortgagor.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 199, 200; Dec. Dig. § 90.*]

2. Executors and Administrators (§ 402*)— Sale of Property—Payment of Claims.

Under Revisal 1905, § 87, subd. 1, providing that debts of a decedent which by law have a specific lien on property are debts of the first class as to order of payment, an unregistered mortgage upon property of a decedent is a debt of the first class having a specific lien, with priority over all other classes of debt, and on a sale of the property by the mortgagor's administrator, after payment of a prior mortgage, the remaining proceeds should have been devoted to the payment of the unregistered mortgage, and not to other claims, after notice of the plaintiff's mortgage.

[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 402.*]

Appeal from Superior Court, Rutherford County; M. H. Justice, Judge.

Action by T. C. McBrayer against R. M. Harrill. Judgment for defendant, and plaintiff appeals. Reversed.

R. S. Eaves and B. A. Justice, for appellant.

McBrayer, McBrayer & McRorie, for appellee.

CLARK, C. J. This is an action by the plaintiff (appellant) to recover out of thedefendant, administrator, and the surety on his administration bond, a sum due by the defendant's intestate which was secured by a second mortgage on realty, which mortgage was unregistered at the date of the debtor's death, and remained so for some time after the order to sell the realty to make assets.

The appellant states in his brief: "The sole question before the court is: Will a mortgage not recorded till after the death of the mortgagor create a lien from the date of its registration as against other simple debts?" But in fact no subsequent registration is necessary. Revisal, § 982, provides that a mortgage shall be a lien only from its registration. But, as between the parties, a mortgage or deed is valid without registration. Wallace v. Cohen, 111 N. C. 103, 15 S. E. 892; Deal v. Palmer, 72 N. C. 582; Leggett v. Bullock, 44 N. C. 283. The personal representative stands in the shoes of his testator or intestate, and the unregistered mortgage has the same lien as it had between the parties. The mortgaged property brought enough to pay both mortgages over and...

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6 cases
  • Coastal Sales Co. v. Weston
    • United States
    • North Carolina Supreme Court
    • 20 Marzo 1957
    ...by the failure to record Exhibit A. '* * * as between the parties, a mortgage or deed is valid without registration.' McBrayer v. Harrill, 152 N.C. 712, 68 S.E. 204, 205. G.S. § 47-20 does not protect every creditor against unrecorded mortgages. It protects only (1) purchasers for a valuabl......
  • Coggin v. Hartford Accident & Indemnity Co.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • 14 Enero 1935
    ...registration. The mortgage, however, is good between the parties without registration, Leggett v. Bullock, 44 N. C. 283; McBrayer v. Harrill, 152 N. C. 712, 68 S. E. 204; Gosney v. McCullers, 202 N. C. 326, 162 S. E. 746, and, when registered, is good against creditors. A general creditor m......
  • Carrow v. Weston
    • United States
    • North Carolina Supreme Court
    • 26 Febrero 1958
    ...no title passed to Weston, no title passed from Weston to the administratrix. She 'stands in the shoes' of her intestate. McBrayer v. Harrill, 152 N.C. 712, 68 S.E. 204; Parker v. First-Citizens Bank & Trust Co., supra; Coastal Sales Co. v. Weston, 245 N.C. 621, 97 S.E.2d 267. If we were to......
  • In re Finley
    • United States
    • U.S. District Court — Middle District of North Carolina
    • 12 Abril 1933
    ...the parties the mortgage is valid. Wallace v. Cohen, 111 N. C. 103, 15 S. E. 892; Deal v. Palmer, 72 N. C. 582; McBrayer v. Harrill, 152 N. C. 712, 68 S. E. 204, 205; Ellington v. Supply Co., 196 N. C. 784-789, 147 S. E. In McBrayer v. Harrill, supra, the administrator of the deceased mortg......
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