Rudasill v. . Cabaniss

33 S.E.2d 475, 225 N.C. 87, 1945 N.C. LEXIS 259

• Court: Supreme Court of North Carolina
• Decided: March 28, 1945
• Status: Published

Opinion

Barnhill, J.

Tbe male defendant purchased certain land and tbe grantor, at bis request, made deed to tbe defendants as tenants by entirety. Tbe grantor in turn accepted an open, unsecured note signed only by tbe husband in payment or as evidence of tbe unpaid purchase price. It is this obligation that bas come into tbe possession of plaintiff. Upon it she bases ber cause of action. She is bound by its terms. Tbe feme defendant is not a maker and cannot be held liable for its payment.

Concede, as contended, that tbe note is conditional payment only and we have left an open, unsecured debt for tbe purchase price — -a debt of tbe purchaser, Charlie Cabaniss, Jr, who, under tbe original contract, was tbe sole obligor.

Tbe conveyance of an interest to tbe wife, tbe husband having paid or agreed to pay tbe purchase money, is presumed to be a gift from tbe husband to bis wife. Ricks v. Wilson, 154 N. C., 282, 70 S. E., 476; Flanner v. Butler, 131 N. C., 151; Trust Co. v. Black, 198 N. C., 219, 151 S. E., 269; Nelson v. Nelson, 176 N. C., 191, 96 S. E., 986; Tire Co. v. Lester, 190 N. C., 411, 130 S. E., 45.

Even so, plaintiff insists that tbe feme defendant received a part of tbe consideration and that simple equity requires that she pay, at least to tbe extent of tbe interest received. This contention is untenable.

Some jurisdictions, it is true, recognize and enforce an equitable lien for purchase money. But there is no lien for purchase money in North Carolina. Womble v. Battle, 38 N. C., 182; Blevins v. Barker, 75 N. C., 436; White v. Jones, 92 N. C., 388; Lumber Co. v. Lumber Co., 150 N. C., 282, 63 S. E., 1045; Jarrett v. Holland, 213 N. C., 428, 196 S. E., 332.

“It is a natural equity that when a vendor sells bis land, that be should have a lien upon it for tbe security of bis purchase money . . . tbe law tenders it to him in tbe shape of a mortgage or deed of trust properly registered. If be do not choose to avail himself of it, it is his own fault . . .” Womble v. Battle, supra. A vendor cannot reserve a lien unless be take bis security in writing and bave it registered. Blevins v. Barker, supra.

Tbe judgment below is

Affirmed.