Terry v. Robbins Et Ux

• Decision Date: 18 April 1901
• Citation: 38 S.E. 470,128 N.C. 140
• Parties: TERRY . v. ROBBINS et ux.
• Court: North Carolina Supreme Court

38 S.E. 470

128 N.C. 140

TERRY .

v.ROBBINS et ux.

Supreme Court of North Carolina.

April 18, 1901.

MORTGAGES — FORECLOSURE — CONTRACT — MARRIED WOMEN — COMMON-LAW RULE — CHANGES—PRESUMPTION — DEFAULT — PAYMENT BY BOND—NOVATION—QUESTION FOR JURY.

1. Where defendant paid an installment on a mortgage by a bond executed in New Jersey by defendant and wife, and there was no evidence that the common-law rule that the contract of a married woman was void had been changed in New Jersey, the bond was void as against the wife, since it must be presumed that the common-law rule prevailed in New Jersey.

2. Where the installment for which plaintiff sought to foreclose a mortgage was paid by defendant by a bond executed by defendant and wife, an instruction that the jury should answer the question whether defendant had made default in the affirmative was properly refused, since whether there was a novation by substituting the bond for the installment depended on the intention of the parties and hence presented a question for the jury.

Appeal from superior court Pasquotank county; Coble, Judge.

Action by Harvey Terry against T. H. Robbins and wife. From a judgment In favor of defendants, plaintiff appeals. Affirmed.

Shepherd & Shepherd and Pruden & Pruden, for appellant.

Busbee & Busbee, for appellees.

MONTGOMERY, J. This action was for the foreclosure of a mortgage upon real estate executed by defendants, Thomas H. Robbins and his wife, to the plaintiff on the 15th of January, 1896; the plaintiff alleging that the first two payments of $2,000 each were past due and unpaid, and that according to the terms of the mortgage the whole debt was due. The defendant averred in his answer, and introduced evidence on the trial to that effect, that the first note of $2,000 had been paid, and that it was provided in the mortgage that upon the payment of that installment the plaintiff should execute to the defendant Robbins a release of a certain part of the land described in the mortgage; and that the plaintiff had refused to release the land, and that, therefore, the defendant had committed no breach of his contract in the nonpayment of the second installment. The alleged payment of the first $2,000 installment was by the bond of the defendant Robbins and his wife, the other defendant (she not having been a party to the original obligation), substituted for the first installment of $2,000 in full discharge and extinguishment thereof, the bond being delivered to the plaintiff and received by him in full satisfaction of the said installment. The bond was executed in New Jersey, and was made payable in Keyport, in the same state. His honor was requested by the plaintiff to instruct the jury that, If they believed the evidence in the case, they should answer the sixth issue, "Has the defendant Robbins made default upon the...