Greene County NcArchives Court.....L. V. Morrill, Green Shackleford & Wife V. 1906
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Source: N C Reports
Written: 1906

Shackleford v. Morrill

(Filed October 9, 1906)

Mortgage Without Joinder of Wife - When Valid - Sale Under Mortgage - 
Contingent Right of Dower

1. A second mortgage executed by the husband, without the joinder of his wife, 
on his land, is not void because of the embarrassed condition of the husband, 
manifested by the fact that the first or purchase money mortgage had not been 
paid, where there are no docketed judgment liens on the land and no homestead 
had been set apart, although its value is less than one thousand dollars.

2. Where the husband's land is to be sold under a first and second mortgage, 
and the wife joined in the execution of the first mortgage only, it is proper 
for the Court to protect the contingent right of dower of the wife in case the 
land sells for more than sufficient to pay the first mortgage and costs.

Action by Green Shackleford and wife against L. V. Morrill, heard by Judge B. 
F. Long at the May Term, 1906, of the Superior Court of Greene upon an agreed 
state of facts, the substance of which appears in the opinion of the Court. 
From a judgment for the defendant the plaintiffs appealed.

Galloway & Albritton for the plaintiffs.
Aycock & Daniels for the defendant.

NC Supreme Court Justice Brown, J. - Plaintiff and wife executed a mortgage 
for the purchase money of the land described in the complaint, concerning 
which there is no dispute. The deed for the land was made to the husband. 
Afterwards, the husband, without the joinder of his wife, executed a second 
mortgage for a loan of money to the defendant. It is contended that the second 
mortgage is void without the joinder of the wife, because of the embarrassed 
financial condition of the husband, manifested by the fact that the first or 
purchase money mortgage had not been fully paid. This position is untenable, 
it being admitted that there are no docketed judgment liens on the land and 
that no homestead had been set apart, although its value is less that one 
thousand dollars. The land belonged to the husband and he had the right to 
execute the second mortgage without the joinder of his wife. This is settled 
in this State. Scott v. Lane, 109 NC, 154; Gatewood v. Tomlinson, 113 NC 312; 
Hughes v. Hodges, 102 NC, 236; Joyner v. Sugg, 132 NC, 591. If the land were 
to be sold under the second mortgage alone, it would be sold subject to the 
wife's right of dower, and the purchaser would acquire a good title except as 
to the contingent right of dower. He would acquire the husband's title and the 
right of present possession, but if the wife survived the husband she could 
enforce her right of dower against the land.

The land, however, is to be sold under both mortgages, the first of which is 
not only given for the purchase money, but in the execution of which the wife 
joined. The purchaser, upon confirmation of sale, will acquire an indefeasible 
title as against both husband and wife. It was, therefore, proper for the 
Court to take into consideration and protect the contingent interest of the 
wife in case the land sells for more than sufficient to pay the first mortgage 
and costs.

Affirmed

Additional Comments:
In the NC Supreme Court Fall Term 1906

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