H. Weil & Bros. v. Thomas

114 N.C. 197

• Court: Supreme Court of North Carolina
• Decided: February 15, 1894
• Status: Published

Opinion

Bur well, J.:

AVe find no error in the judgment to which the defendants except. It conforms to the principle announced, in Shinn v. Smith, 79 N. C., 310; Davis v. Lassiter, 112 N. C., 128, and Iiinton v. Greenleaf, 113 N. 0., 6, and cases there cited.

According to these authorities a married woman who has mortgaged her land to secure the payment of a debt of her husband has the rights of a surety as to the liability she has thus imposed on her property, and can require that all of her husband’s estate that is mortgaged to secure the debt shall be exhausted before her land is sold, and she has a right to object to the diversion of funds that should have been applied on the debt to her exoneration, if such diversion was made without her consent.

She being dead, her heirs are entitled to like protection. It is proper and just that all the husband’s interest in the l'and covered by the mortgage should be exhausted before the estate of her heirs therein shall be taken and sold.

Affirmed.