Winborne v. Guy

• Decision Date: 14 October 1942
• Docket Number: 162.
• Citation: 22 S.E.2d 220,222 N.C. 128
• Parties: WINBORNE v. GUY et al.
• Court: North Carolina Supreme Court

22 S.E.2d 220

222 N.C. 128

WINBORNE v. GUY et al.

No. 162.

Supreme Court of North Carolina

October 14, 1942

Civil action to foreclose an equitable lien.

In 1913, J. Emmett Guy died seized and possessed, among other property, of a certain lot or parcel of land situate in Marion, N. C. This was his home place. Said testator left him surviving his widow, now deceased, and the following children: W. W. Guy plaintiff's testator, and the defendants J. Emmett Guy E. C. Guy, Robert E. Guy, Nannie Gooch Guy Long and Mattie Guy Daniel.

The said J. Emmett Guy in his last will and testament made the following provision in respect to his home place, to-wit:

"It is my wish that after my death, the place that I own and occupy at Marion, North Carolina, shall be held and occupied by my wife, Mattie W. Guy, as a home and for her and our children as well as my daughter, Nannie, so long as my said wife shall live. But if it shall seem advisable to sell said place, or any part thereof, the said Mattie W. Guy shall have the right to sell and convey the same, provided any two of our children and one of mine, shall write in the deed to the purchaser.

"In case such sale is made during the life of my wife, Mattie W Guy, or after her death, it is my wish that before any distribution of the proceeds of such has been made, it is my desire that my son, Wright W. Guy, shall be repaid and reimbursed in full for the mortgage which W. C. Atwell held against me, with its accumulated interest and also for the cash with interest of any permanent improvement which he may have made or paid for on said place of the dwelling house thereon."

Thereafter, on February 13, 1913, W. W. Guy entered into an agreement in writing with his brothers and sisters in terms as follows:

"North Carolina

"McDowell County

"Whereas, J. Emmett Guy of Marion, North Carolina, departed this life on the 11th. day of Feb'y, 1913, seized and possessed of a certain lot or parcel of land situate in said town of Marion, State of North Carolina, a life estate in which real estate he devised to his widow, Mattie W. Guy, for and during her natural life, but as to the remainder therein died intestate, and which remainder descended and passed to his children and heirs at law share and share alike, which children and heirs at law are as follows, to-wit: Robt. E. Guy, Nannie Gooch Guy, W. Wright Guy, Edwin C. Guy, Mattie Guy Daniel and J. Emmett Guy;

"And Whereas, at the time of his death said decedent was indebted to said W. Wright Guy and his said widow, Mattie W. Guy, for certain moneys advanced by them to him, and for the cost of certain permanent improvements made by them upon said real estate, for the payment of which said decedent left no personal estate, and which indebtedness or debts are therefore proper charges against said real estate:

"Now, therefore, for valuable consideration it is hereby agreed that the sum total due said W. Wright Guy by said estate of said decedent, inclusive of the mortgage assigned him by W. C. Atwell and of all demands whatsoever, is of this date the sum of $1000.00; and that the sum total due said Mattie W. Guy, inclusive of all demands whatsoever, is of this date the sum of $320.00; it is further agreed that said sums and each of them shall be paid from said real estate before any partition of the same to and amongst those entitled thereto, or he paid from the proceeds of sale of said real estate before any distribution of such proceeds to and amongst those entitled thereto; it is further agreed that said sums so due said W. Wright Guy and Mattie W. Guy shall bear interest from this date, and that neither of said sums nor any part of them shall be barred or prejudiced by any statute of limitations or otherwise, and the signers hereto other than the said W. Wright Guy and Mattie W. Guy, hereby waive the benefit of the statute of limitations, and any and all other benefits that might or could be pleaded to the prejudice of said debts.

"Witness our hands and seals this 13th. day of Feb'y, 1913."

On April 2, 1932, W. W. Guy died leaving a last will and testament in which he named the plaintiff as executor and also as trustee for the beneficiaries therein named.

The widow of E. Emmett Guy, through whom the parties claim the locus in quo, having died, plaintiff instituted this action in which he seeks to have it adjudged that said paper writing constitutes an equitable lien on the home place and for a decree of foreclosure. The defendants J. Emmett Guy and wife and E. C. Guy appeared and demurred to the complaint for that: (1) the court has no jurisdiction of the subject of the action; (2) the jurisdiction affecting the subject matter of the action is vested in the clerk of the Superior Court; (3) plaintiff has an adequate remedy at law through petition before the clerk to sell lands to make assets; (4) the complaint does not state facts sufficient to constitute a cause of action; (6) the complaint expressly negatives jurisdiction of the court and affirmatively shows jurisdiction of the clerk; (7) no sufficient facts are alleged to authorize the court to declare the debt sued upon a first lien against the property or to foreclose the same; and (8) no consideration for the execution of said contract is alleged and it is nudum pactum.

When the cause came on to be heard upon the demurrer the court below entered its judgment sustaining the demurrer and plaintiff excepted and appealed.

Proctor & Dameron, of Marion, for appellant.

Charles Hutchins, of Burnsville, for appellees.

BARNHILL Justice.

Does the agreement between the parties create an equitable lien upon the real property therein described? If so, plaintiff's remedy is by an action to foreclose.

There is more than one method of creating an equitable lien. Here, however, we are interested only in the law relating to the creation of such liens by written contract. Therefore, we may confine ourselves to that particular phase of the subject.

An equitable lien is not an estate or property in the thing itself, nor a right to recover the thing; that is, a right which may be the basis of a possessory action. It is neither a jus ad rem nor a jus in re. 17 R.C.L., 603, § 12; 1 Pomeroy, Eq.Jur., 219, § 165; Garrison v. Vermont Mills, 152 N.C. 643, 68 S.E. 142; Arnold v Porter, 122 N.C. 242, 29 S.E. 414. ...