Whitaker v. Hill

• Decision Date: 02 March 1887
• Citation: 96 N.C. 2,1 S.E. 639
• Court: North Carolina Supreme Court
• Parties: WHITAKER and Wife v. HILL, Trustee.

96 N.C. 2

1 S.E. 639

WHITAKER and Wife

v.HILL, Trustee.

Supreme Court of North Carolina.

March 2, 1887.

Appeal from superior court, Halifax county.

Plaintiffs, W. P. Whitaker and wife, conveyed to defendant Thomas N. Temple, in trust to secure a debt due Gwathmey & Co., a tract of land and certain personal property, including the growing crop of cotton. The trustee sold the personal property and cotton, and plaintiff, claiming that the proceeds were sufficient to pay the debt, and that he was entitled to a homestead in the land, and that his wife was an infant when she signed the mortgage, applied for an injunction to restrain the trustee from proceeding to sell the land. The injunction was granted, and, defendants moving to dissolve, the lower court, upon the answer, affidavits, and exhibits, adjudged that the motion to dissolve be continued to the hearing, from which judgment defendants appeal.

Mullen & Daniell, for plaintiffs.

Thos. N. Hill, for defendant.

MERRIMON, J.

The plaintiffs in their verified complaint allege, as the ground of the equitable relief they demand, that the debt specified in and secured by the deed of trust under which the defendant trustee is proceeding to sell the land, which it purports to convey to him in trust, has been fully paid by the proceeds of the sale of a part of the personal property and cotton, of the crop conveyed by that deed, and as by its terms and effect provided. They further allege that the land mentioned is all that the husband plaintiff owns, and had at the time the deed was executed, and that it is not worth more than $1,000, and he is entitled to have his homestead therein allotted to him. It is further alleged that the feme plaintiff was, at the time she purported to acknowledge the execution of the deed of trust mentioned, the wife of her co-plaintiff; that she was then under the age of 21 years, and will not attain her majority until the ninth day of February, 1888; and that the deed mentioned is inoperative and void as to the land embraced by it, because this land constituted the homestead of the plaintiff.

The defendants, in effect, confess and avoid the alleged cause of action. They admit that they received the money, the proceeds of the sales of the personal property, including the cotton, as alleged in the complaint, but they aver that, in the latter part of the crop year of 1884, at the request of the husband plaintiff, they advanced to him money to enable him to gather...