Scott v. Lane

109 N.C. 154

Opinion

Claek, J.:

According to the defendant’s testimony, he was indebted to no one else when he executed the mortgages, and there is nothing in the pleadings and evidence to indicate that the mortgaged property had theretofore been allotted as a homestead. There was no restriction, therefore, upon the owner’s jus disponendi, and the purchaser, at the sale under the mortgage, acquired a good title as against the defendant mortgagor, subject to the contingent right of dower of the wife if she should survive him. A case exactly in point is Hughes v. Hodges, 102 N. C. 236; Ib., 262.

Upon the evidence, the Court should have instructed the jury to return a verdict for the plaintiff.

Error.