Purvis v. Carstaphan

• Decision Date: 30 June 1875
• Parties: WILLIAM W. PURVIS and wife v. WILLIAM H. CARSTAPHAN.
• Court: North Carolina Supreme Court

73 N.C. 575

WILLIAM W. PURVIS and wife

v.WILLIAM H. CARSTAPHAN.

Supreme Court of North Carolina.

June Term, 1875.

Where a wife joins her husband in a conveyance of her separate property to secure a debt of the husband, the relation which she sustains to the transaction is that of surety.

A surety is entitled to the benefit of all the securities which the creditor acquires from the principal debtor, and if the creditor perverts or misapplies such securities to the prejudice of the surety, he thereby discharges the surety pro tanto. Therefore, where a feme covert joined her husband in a conveyance of her separate estate to secure the payment of advances which the defendant, a merchant, had agreed to make, to enable the husband to carry on a farm, and the mortgage alse conveyed the crops to be made, and all the stock, tools, &c., to secure the sum of $1,500, and the husband received the $1,500, and the additional sum of $1,100, and the crops were delivered to the defendant, who sold them, and by the direction of the husband, without the knowledge of the wife, applied the proceeds of the crop to the payment of the additional sum of $1,100: It was held, That as against the husband the application was valid, but as against the wife, a surety, it was a perversion of the security, and operated as a discharge of the liability of the land.

MOTION to dissolve an Injunction, heard before Moore J??, at Spring Term, 1875, MARTIN Superior Court.

The plaintiffs had executed to the defendant a mortgage, a copy of which is hereto annexed. The debts to be secured were those of the husband; the land mortgaged was the property of the wife.

The plaintiff William, traded with the defendant Carstaphan, to an amount greater than fifteen hundred dollars, and the other creditors secured in the mortgage had been paid in full; and delivered to the defendant Carstaphan, all of the cotton raised on the mortgaged lands, to an amount greater than the $1,500 and the $224.83, but the plaintiff is still indebted to him in about the sum of $1,100. The plaintiff William, directed Carstaphan to apply the proceeds of the sale to the amount called the $1,100 debt. The plaintiff William, and his wife lived upon the mortgaged premises, and he managed and controlled the entire crop.

There was no evidence that the plaintiff Martha, knew the extent of the purchases of her husband from the defendant or of the manner in which the proceeds from the sale of the cotton was to be directed to be applied.

The defendant Carstaphan, had advertised the lands mortgaged for sale, and the plaintiffs had obtained an order restraining the sale.

At the hearing, his Honor being of opinion that while the mortgage would only secure Carstaphan against a second mortgage only to the extent of the sums of $1,500, and $24.83 yet as against the plaintiffs, it was a security for whatever amount the plaintiff William, might owe the defendant, contracted for the purposes mentioned in the mortgage, although the land mortgaged was the property of the wife, and more than $1,500 had been advanced to the plaintiff William.

From this ruling of his Honor, the plaintiffs appealed.

The following is a copy of the mortgage:

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                ¦STATE OF NORTH CAROLINA, ¦)¦
                +-------------------------+-¦
                ¦County of Martin.        ¦)¦
                +---------------------------+
                

This indenture made and entered into this the twenty sec ond day of February, one thousand eight hundred and seventy-three, by and between William W. Purvis and wife, Martha E. Purvis, of the first part, of the above mentioned county and State, and William H. Carstaphan, of the State of North Carolina and county of Martin, and B. Weisenfield, Bernard Stern, J. Frieden waller and David Weisenfield, trading under the name, firm and style of Wiesenfield, Stern & Co., of the city of Baltimore and State of Maryland, parties of the second part, witnesseth: That the said William W. Purvis and wife, Martha E. Purvis, for and in consideration of the sum of five dollars, to them in hand paid by the parties of the second part, and for the further considerations which will appear and be set forth hereafter in this deed, have bargained and sold, and by these presents do bargain, sell, alien and convey unto William H. Carstaphan, B. Weisenfield, Bernard Stern, J. Friedenwald and David Weisenfield, of said city of Baltimore, trading under the name, firm and style of Weisenfield, Stern & Co., the following real and personal property, lying and being in the State of North Carolina and county of Martin, and bounded, described and identified as follows, viz: A tract of land containing four hundred and eighty-four acres, adjoining the lands of McG. Taylor and that of the heirs of Joshua Taylor and others, it being the piece upon which William W. Purvis and his wife, Martha E. Purvis, now reside, four mules, two horses, one mare, all of the farming utensils to the said Purvis belonging, one gin and gin house, and all of the crops of every kind and description that may be planted or any where raised by the said William W. Purvis during the year eighteen hundred and seventy-three: To have and to hold the said four hundred and eighty-four acres of land, four mules, two horses, one mare, the farming utensils of every description, gin and gin house, and crops of every description raised by the said William W. Purvis during the year eighteen hundred and seventy-three, unto them, the said William H. Carstaphan and B. Weisenfield, Bernard Stern, J. Friedwald and David Weisenfield of tho firm of Weisenfield, Stern & Co., their heirs and assigns forever, in fee simple and absolutely; and the said parties of the first part doth now and will forever warrant and defend unto the parties of the second part, the title herein granted to said disposed of property against the claims of any and all persons whatsoever.

Provided and nevertheless, that the conditions on which the above deed is made are as follows, viz: That it is the desire and intention of the said William W. Purvis to engage in farming during the year eighteen hundred and seventy-three on his plantation in said county, and which he is unable to do without aid in the way of money and supplies; which money and supplies the said William H. Carstaphan and B. Weisenfield, Bernard Stern, J. Friedwald and David Weisenfield, of the firm of Weisenfield, Stern & Co., agree to furnish, if necessary to the amount of three thousand dollars, in proportion as follows, that is to say, William H. Carstaphan, supplies and money to the amount of fifteen hundred dollars, and Weisenfield, Stern & Co., money, or its equivalent, if desired, to the amount of fifteen hundred dollars to the said William W. Purvis to assist him in his farming operations.

Now, therefore, if the said William W. Purvis shall, on or before the first day of January, eighteen hundred and seventy-four, pay to the said Weisenfield, Stern & Co., either in cotton or money, whatever sum they may advance at eight per cent. interest on the same and five per cent. commissions on such sum and in all respects hold them harmless from any loss, and also pay William H. Carstaphan the sum of...