Shinn v. Smith

• Decision Date: 30 June 1878
• Citation: 79 N.C. 310
• Court: North Carolina Supreme Court
• Parties: T. J. SHINN v. W. A. SMITH.

79 N.C. 310

T. J. SHINN

v.W. A. SMITH.

Supreme Court of North Carolina.

June Term, 1878.

APPEAL from an order continuing an Injunction made at Chambers on the 9th of April, 1878, by Cox, J.

On the 17th of January, 1872, the defendant and his wife executed a mortgage deed to Elam King, to secure a debt the defendant owed King, with power of sale in default of payment at a certain time, and on the 3d of March, 1873, they executed a similar deed to Joel Reed to secure defendant's debt to him. The deed to King conveyed a tract of land in and near the town of Concord in Carbarrus county, and the deed to Reed conveyed the defendant's equity of redemption therein.

The plaintiff, having obtained a judgment against the defendant on a debt due him, had an execution issued which was returned unsatisfied, and thereupon he brought an action against the defendant and said mortgagees for a foreclosure of the mortgages and a sale of the land to pay his debt; and at Fall Term, 1877, of Cabarrus Superior Court, before Kerr, J., an order was made appointing a commissioner to sell the same for the purpose aforesaid.

The affidavit of Mrs. Smith, wife of defendant, upon which the injunction was granted, states that up to the time of the rendition of said order she was not a party to the action, but subsequently filed her complaint and moved to be made a party to protect her equities as surety of her husband, in that, said order authorized the sale of a house and lot which was her separate property; and at Chambers on the 18th of January, 1878, before Schenck, J. the said order was modified, and the commissioner directed to first sell the property of the defendant, and if by such sale a sufficient sum was not realized to pay the debts mentioned, then to sell the separate property of Mrs. Smith and disburse the fund according to the former order (and in the meantime granted a restraining order); in pursuance thereof the commissioner sold the land which was the property of the husband (defendant) and conveyed by said deeds, the proceeds of which proved to be sufficient not only to pay the debts secured by the mortgages, but left an excess of several hundred dollars, without resorting to a sale of the separate estate owned by the affiant. In this connection the affiant stated that she did not owe the creditors of her husband; that the indebtedness secured by the mortgages arose from the individual contract of her husband, and her separate property was conveyed with his, as additional security for its payment; and that the debt of the plaintiff is also an individual debt of her husband. The affiant is advised that as the debts secured in the mortgages have been satisfied as aforesaid, her separate property is discharged from any further lien in respect to the execution of said deeds; that notwithstanding the facts herein stated, the said commissioner has advertised her separate property, said house and lot, for sale to satisfy the plaintiff's judgment for the payment of which she is in no way liable; and she therefore asks that the plaintiff, the commissioner, &c., be enjoined from selling her said separate property. His Honor granted the order and the plaintiff appealed.

Messrs. P. B. Means and J. W. Hinsdale, for plaintiff .

Messrs. Wilson & Son, for defendant .

READE, J.

The husband, defendant Smith, owed debts and executed mortgages on his lands to secure them. His wife joined him in the mortgages and included a house and lot which was her separate property. The plaintiff was an outside creditor of the husband Smith, and brought this action against the mortgagees to compel them to foreclose the mortgages so that he could have the surplus of the proceeds of the sale applied to his debt. At Fall Term, 1877, of the Court below an order was made to sell the lands in the mortgage for the purpose named above, and that the land of the wife be sold...