Harrington v. . Rawls , 136 N.C. 65 ( 1904 )

The deed of partition, by mutual deeds, where, in the other party conveyed in severalty to J. A. Briley and Elsie Briley one part of the tract in which Elsie Briley was a tenant in common carried no title, but was simply a severance of the unity of possession. Harrison v. Ray, 108 N.C. 215, 11 L.R.A., 722, 23 Am. St., 57. Hence J. A. Briley acquired no title, and not holding by entireties with his wife, upon her death his sole interest in the land is a life estate as tenant by the curtesy. This was decided upon the first appeal, (67) Harrington v. Rawls, 131 N.C. 39, and was not open for consideration by the Judge below, and consequently not upon a subsequent appeal. Holley v. Smith, 132 N.C. 36;Perry v. R. R., 129 N.C. 333, and cases cited.

On 16 December, 1889, J. A. Briley and wife executed a mortgage upon said premises to secure the payment of $800 borrowed money. On 28 April, 1898, and after the death of his wife, J. A. Briley conveyed the land to defendant Tyson by a deed purporting to convey the fee, but whose legal effect was to convey only the life estate of J. A. Briley therein as tenant by the curtesy. On 24 March, 1902, the land was sold under the mortgage and the net surplus arising from said sale ($1,920.65) was ordered paid into the Clerk's office, which order was affirmed upon appeal. Harrington v.Rawls, 133 N.C. 782.

Had the land been sold prior to the wife's death, the surplus would have passed to her administrator as personalty. But being sold after the death of the wife, it had previously to such sale descended to her heirs charged with the mortgage and the husband's tenancy by the curtesy and the surplus must be treated as realty. The provision in the mortgage, "pay over the surplus, if any, to J. A. Briley and wife Elsie," means only, as in other joint mortgages, "as their several interests shall appear." It is not a conveyance of any interest by one mortgagor to the other.

The complaint avers that the mortgage debt was the indebtedness of J. A. Briley. If so, the entire value of his interest as tenant by the curtesy should be applied to the payment thereof, to the exoneration of the wife's interest, which has descended to her heirs. Shinn v. Smith, 79 N.C. 319; Mebanev. Mebane, 80 N.C. 40; Davis v. Lassiter, 112 N.C. 128. And she having died, her heirs are entitled to the same protection.Weil v. Thomas, 114 N.C. 197. In re Freeman, 116 N.C. 199, differs in that there the money was borrowed for (68) improvements upon the wife's land; hence it was held that there the curtesy interest should not be charged with the debt, but the debt should first be paid and the value of the curtesy in the surplus ascertained and paid to the husband.

The answer alleges that the debt was the joint debt of husband and wife. If so, half of the debt should be paid out of the husband's curtesy interest. Which of the contentions is true is a fact not decided, and it does not appear but that in either case the husband's interest has been absorbed by his indebtedness. Until the fact as to this appears, the exception of Tyson, who has no greater interest than the husband, his assignor, cannot be passed upon, for it must appear both that there was error and that the party excepting was injured thereby. It appears that J. A. Briley was born 10 April, 1844. If the husband's interest in the property was not more than enough to pay off his indebtedness Tyson has suffered no detriment. The cause must be remanded, to the end that proper proceedings be had in the Court below in accordance with this opinion.

The appellant will be entitled (Laws 1887, ch. 214) to have the life interest valued, and if after deducting the amount of the husband's indebtedness there remains anything due it shall be paid to Tyson out of the surplus in the Clerk's office, but having failed to show that he has any interest in the fund and has sustained detriment by the order appealed from the appellant will pay the costs of the appeal. The Code, sec. 527.

The Court below correctly held that "the character of the improvements and the circumstances of the purchase and occupation of the land by the defendant Tyson do not entitle him to any allowance for said improvements.

Remanded.

Cited: Sprinkle v. Spainhour, 149 N.C. 226.

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