Scott v. Lane
| Decision Date | 08 November 1891 |
| Citation | 109 N.C. 154,13 S.E. 772 |
| Parties | Scott v. Lane. |
| Court | North Carolina Supreme Court |
Foreclosure or Mortgage—Rights of Purchaser.
The purchaser of land on foreclosure of a mortgage, made by the owner alone, acquires title thereto, subject only to the wife's right of dower, where it does not appear that the mortgagor was in debt at the time of executing the same, or the land had been allotted as a homestead. Hughes v. Hodges, (N. C.) 9 8. E. Rep. 437, followed.
Appeal from superior court, Guilford county; James G. MacRae, Judge.
Ejectment brought by L. M. Scott against George D. Lane. Plaintiff claims title by commissioners' deeds on foreclosure of two mortgages executed by defendant, and not signed by his wife. Judgment was directed for defendant by the court, and plaintiff appeals. Reversed.
L. M. Scott, for appellant.
According to the defendant's testimony, he was indebted to no one else when he executed the mortgage, and there is nothing in the pleadings and evidence to indicate that the mortgaged property had theretofore been allotted as a homestead. There was no restriction, therefore, upon the owner's jus disponendi, and the purchaser at the sale under the mortgage acquired a good title as against the defendant mortgagor, subject to the contingent right of dower of the wife if she should survive him. A case exactly in point is Hughes v. Hodges, 102 N. C. 236, 262, 9 S. E. Rep. 437, 442. Upon the evidence, the court should have instructed the jury to return a verdict for the plaintiff. Error.
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