Smith Builders Supply, Inc. v. Rivenbark

Supreme Court of North Carolina

Smith Builders Supply, Inc. v. Rivenbark

56 S.E.2d 431, 231 N.C. 213, 1949 N.C. LEXIS 504

CourtSupreme Court of North Carolina

DecidedNovember 30, 1949

StatusPublished

Cited by7 cases

This text of 56 S.E.2d 431 (Smith Builders Supply, Inc. v. Rivenbark) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Smith Builders Supply, Inc. v. Rivenbark, 56 S.E.2d 431, 231 N.C. 213, 1949 N.C. LEXIS 504 (N.C. 1949).

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Opinion

Devin, J.

The court below has ruled correctly upon the admitted facts here presented. The lien of the deed of trust to secure the purchase money loaned, which had been executed and recorded simultaneously with the deed to the vendees, was superior to that of the materialman.

The principle has been uniformly upheld here that a deed and a mortgage to the vendor for the purchase price, executed at the same time, are regarded as one transaction. The title does not rest in the vendee but merely passes through his hands, and during such instantaneous passage no lien against the vendee can attach to the title superior to the right of the holder of the purchase money mortgage. Bunting v. Jones, 78 N.C. 242; Moring v. Dickerson, 85 N.C. 466; Hinton v. Hicks, 156 N.C. 24, 71 S.E. 1086; Humphrey v. Lumber Co., 174 N.C. 514, 93 S.E. 971; Chemical Co. v. Walston, 187 N.C. 817 (825), 123 S.E. 196; Trust Co. v. Brock, 196 N.C. 24, 144 S.E. 365. And this rule is equally applicable where a third party loans the purchase price and takes a deed of trust to a trustee to secure the amount so loaned. Moring v. Dickerson, supra; Chemical Co. v. Walston, supra; Trust Co. v. Brock, supra. The cases cited by appellant may not be held controlling on the facts here presented.

Judgment affirmed.

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Devin, J.

The court below has ruled correctly upon the admitted facts here presented. The lien of the deed of trust to secure the purchase money loaned, which had been executed and recorded simultaneously with the deed to the vendees, was superior to that of the materialman.

The principle has been uniformly upheld here that a deed and a mortgage to the vendor for the purchase price, executed at the same time, are regarded as one transaction. The title does not rest in the vendee but merely passes through his hands, and during such instantaneous passage no lien against the vendee can attach to the title superior to the right of the holder of the purchase money mortgage. Bunting v. Jones, 78 N.C. 242; Moring v. Dickerson, 85 N.C. 466; Hinton v. Hicks, 156 N.C. 24, 71 S.E. 1086; Humphrey v. Lumber Co., 174 N.C. 514, 93 S.E. 971; Chemical Co. v. Walston, 187 N.C. 817 (825), 123 S.E. 196; Trust Co. v. Brock, 196 N.C. 24, 144 S.E. 365. And this rule is equally applicable where a third party loans the purchase price and takes a deed of trust to a trustee to secure the amount so loaned. Moring v. Dickerson, supra; Chemical Co. v. Walston, supra; Trust Co. v. Brock, supra. The cases cited by appellant may not be held controlling on the facts here presented.

Judgment affirmed.

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56 S.E.2d 431, 231 N.C. 213, 1949 N.C. LEXIS 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-builders-supply-inc-v-rivenbark-nc-1949.

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