Wesson Hunting v. . Thomas J. Johnson , 66 N.C. 189 ( 1872 )

The case of Sutton Wife v. Askew, at this term, cited and approved. This bill was filed against the defendant, Thomas J. Johnson, alone, afterwards, his wife was made party defendant: The bill stated that the defendant was indebted to complainants in a large sum, and executed his note to them on the 27th day of March, 1867. That to secure the said debt, he executed a mortgage for a tract, or parcel of land in the town of Fayetteville, which deed bears date 27th March, 1867; That the note has not been paid according to the conditions of the mortgage, and prays for a decree of foreclosure and sale: The defendants answering, admit, the execution of the mortgage and that the debt has not been paid, but insists that, under the Act of the General Assembly, of 1866-67, chap. 54, the defendant, Ann M. Johnson, wife of Thomas J. Johnson, "became seized and possessed, of 1/3 interest in all the lands of which her husband was seized during the coverture." That she did not sign the said deed, and that according to the provisions of the Act above named, no title passed to the complainants.

The defendant, Ann M. Johnston, answering, insists upon her rights under the Act aforesaid — that the deed was made without her concurrence or assent, and she still refuses to consent thereto.

The defendant T. J. Johnson states, that he was married in the year 1834.

The cause was heard upon the bill and answer, at Fall Term 1870, when a final decree was made, in favor of complainants, directing the land to be sold. And thereupon "the defendant pleads as a plea since the last continuance, that these same plaintiffs instituted proceedings in bankruptcy in the District Court of the United States, returnable to Fall Term 1868, of said Court, to force him into bankruptcy, and he submits that the plaintiffs should elect which suit they will prosecute."

The Court "disregarded the entry of this plea upon the docket, and, directed the decree to stand." From the decree of the Court the defendants pray an appeal to the Supreme Court. In Sutton and wife v. Askew, at this term, this Court decides that the Statutes restoring to married women the common law right of dower, are unconstitutional, so far as they apply to marriages contracted previous to the passage of those statutes.

As the feme defendant was married, before the enactment of those statutes, she had no interest in the lands conveyed to the plaintiffs.

The suggestion of the defendant, in the nature of a plea since the last continuance, that the plaintiffs are prosecuting a suit against him in the Court of Bankruptcy, cannot be made available, either as a plea, or as a foundation for a motion to force the plaintiffs to elect, in which Court, they will pursue their remedy.

1st. It does not appear that both suits are for the same cause of action.

2nd. A plea puis darrein continuance is not admissible in a Court of Equity; its effect, may be obtained, by means of a cross-bill. 1 Dan. Ch.Pr. 681.

3rd. The case of a mortgagee, is an exception to the general rule, and he may proceed on his mortgage in equity, and, on his bond, at law, at the same time. Danl. C. P., 962.

4th. The matter, which had existed so long, comes too late after hearing and decree.

The proceedings in bankruptcy cannot operate in suspension in this suit, as in cases of involuntary bankruptcy, an application for the stay of a pending suit in another Court, cannot be made, until the order of adjudication is proved. Bump on Bank, 332.

JUDGMENT AFFIRMED.