Chowan County NcArchives Court.....Edward Pearce, Adm'r Et Al, Mary E. Creecy V. 1873
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Connie Ardrey n/a December 2, 2009, 6:39 pm

Source: Nc Reports June Term 1873
Written: 1873

Mary E. Creecy v. Edward Pearce, Adm'r et al

The widow of a mortgagor, as against the legatees and next of kin as well as 
against the heirs and devisees of her deceased husband, has a right to have 
the mortgaged land exonerated from the mortgage debts, but as against his 
other creditors she has no such right. As to them, she has only the right to 
have the two-thirds of the land not embraced in the dower, and the reversion 
of the dower sold, and the proceeds applied to the payment of the mortgage 
debt, and to have the residue of that debt, if any, paid rateably with the 
other debts of the deceased out of the personal assets, and if there still be 
any part of the mortgage debt unpaid, it will be a charge on the dower.

This was a Petition for dower, first heard before the clerk of the Superior 
Court of Chowan County, and afterwards before his Honor, Albertson, J.

The facts of the case were shortly these: Augustus R. Creecy died in the 
county of Chowan in November, 1872, leaving the petitioner, his widow, and 
several children, who are the defendants. In his life-time he owned a tract of 
land, which he mortgaged to one John Roberts, for fifteen hundred dollars, 
which remained unpaid at the time of his death. The defendant, Pearce, 
administered on his estate and found it to be insolvent.

In her petition, the widow prayed to have the third part of the land 
exonerated, by having the mortgage dept paid out of the personal estate, and 
that part of the land not assigned to her for dower. The defendant, Hathaway, 
as a creditor, on behalf of himself and the other creditors, was made a party 
defendant and opposed the petition. The clerk of the Superior Court gave 
judgment in favor of the petitioner, which was approved by the Judge, and the 
defendant, Hathaway, prayed and obtained an appeal to the Supreme Court.

No counsel appeared in this Court for the defendants.
Smith & Strong, for the plaintiff.

1. Debts which are a specific lien on the property of an intestate, must first 
be paid to the extent of the value of the property to which the lien attaches. 
Act of 1868-'69, chap. 113, sec. 24.

2. The plaintiff has a right to require the application of the whole of the 
personal estate, or so much as is necessary to pay off the encumbrance, and 
exonerate her dower from the lien, and this through a payment of the debt. 

Pearson, C.J.

The decision will be modified accordingly, and the cost be paid out of the 
fund realized by a sale of the real estate.
This will be certified.

Per Curiam
Judgment Accordingly
[see court case for full details of Judge Pearson's findings]


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