{ "id": 8648890, "name": "ALFRED ALEXANDER v. L. B. DAVIS and wife, ANN E. DAVIS, and JOSHUA B. DAVENPORT", "name_abbreviation": "Alexander v. Davis", "decision_date": "1889-02", "docket_number": "", "first_page": "17", "last_page": "20", "citations": [ { "type": "official", "cite": "102 N.C. 17" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "101 N. C., 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650194 ], "opinion_index": 0, "case_paths": [ "/nc/101/0196-01" ] }, { "cite": "4 Ired. Eq., 312", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2100135 ], "opinion_index": 0, "case_paths": [ "/nc/39/0312-01" ] }, { "cite": "1 Ired. Eq., 423", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2096951 ], "opinion_index": 0, "case_paths": [ "/nc/36/0423-01" ] }, { "cite": "3 Ired. Eq., 237", "category": "reporters:state", "reporter": "Ired. Eq.", "case_ids": [ 2098257 ], "opinion_index": 0, "case_paths": [ "/nc/38/0237-01" ] }, { "cite": "80 N. C., 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687827 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/80/0166-01" ] }, { "cite": "84 N. C., 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698541 ], "opinion_index": 0, "case_paths": [ "/nc/84/0661-01" ] } ], "analysis": { "cardinality": 337, "char_count": 6227, "ocr_confidence": 0.521, "pagerank": { "raw": 7.97426162790835e-08, "percentile": 0.46338473787467915 }, "sha256": "bcb052cf390bbc17c7360462f10c585e906c804485ddc93447a9920db7083b4e", "simhash": "1:a8b6cd50e008b7d3", "word_count": 1149 }, "last_updated": "2023-07-14T17:04:58.286883+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALFRED ALEXANDER v. L. B. DAVIS and wife, ANN E. DAVIS, and JOSHUA B. DAVENPORT." ], "opinions": [ { "text": "Davis, J.\n(after stating the case). It is insisted for the defendants that \u201c the power of the wife was to appoint to a use or uses by deed or will \u201d executed in the manner directed by the deed from L. B. Davis to the trustee Davenport, and that the mortgage is not such an execution of the power as was contemplated and authorized, and that it is inoperative to convey the land. It is also objected that the trustee did not join in the deed.\nThe trustee held the naked legal title for the purposes set out in the deed, and upon the conveyance by the wife in conformity with the requirements of the deed the legal title should follow.\nConceding, as was held in Hardy v. Holly, 84 N. C., 661, that the power of disposition by the wife is not absolute, but is limited to the mode and manner pointed out in the deed made for her benefit, in the case before us there was a compliance with every requisite of the deed and every requirement of law necessary to give effect to the disposition of the use made by her. Newhart v. Peters, 80 N. C., 166, and cases there cited; Frazier v. Brownlow, 3 Ired. Eq., 237 ; Miller v. Bingham, 1 Ired. Eq., 423; Newlin v. Freeman, 4 Ired. Eq., 312.\nIt is said by counsel for\u2019defendants that \u201c the power to sell does not convey ordinarily a power to mortgage.\u201d Admit this to be so in conveyances to trustees for purposes of sale only, the deed to Davenport is very different; it conveys to him the mere legal title, to be held for the feme defendant and to such \u201cuse or uses as she may at any time appoint\u201d in the mode designated. The absolute power of disposal is in her limited only by the mode pointed out, and by it the trustee is not required to join in the deed.\nThe husband and wife can by deed of mortgage, executed, proved and registered as required by law, convey the wife\u2019s lands and subject them to the paynient of debts or other liabilities. Newhart v. Peters, supra; Norris v. Luther, 101 N. C., 196, and cases cited. This is also sustained by Hardy v. Holly, and the authorities there cited. No question was made in the ruling in that case as to the power of the wife to make a mortgage, but there was a failure to comply with the provisions of the instrument creating the separate estate of the wife. That is not so here.\nThere is no error. Affirmed.", "type": "majority", "author": "Davis, J." } ], "attorneys": [ "Messrs. W. D. Pruden and G. L. Pettigrew, for the plaintiff.", "Messrs. J. K Moore (by brief) and G. F. Warren, for the defendants.\"" ], "corrections": "", "head_matter": "ALFRED ALEXANDER v. L. B. DAVIS and wife, ANN E. DAVIS, and JOSHUA B. DAVENPORT.\nMarried Woman \u2014 Power of Appointment \u2014 Mortgage.\nWhen land had been conveyed by A. to a trustee, in trust, to be held to the sole and separate use of A.\u2019s wife and her heirs, free from any debts or contract of A., and to \u201csuch other uses as she may at any time appoint by writing signed with her hand, whether by deed attested by one or more witnesses, or by will,\u201d &c.: Held, that a mortgage, with power of sale to secure a debt, made by A. and wife, attested by a witness, properly proved, with private-examination of wife, and registered, was valid, and that the purchaser at a sale by the mortgagee could recover possession from A. and his wife, and require the trustee to convey his legal estate.\nCivil action to recover land, tried before Graves, J, at Fall Term, 1887, of the Superior Court of WASHINGTON County.\nThe following are the facts agreed:\n1. In August, 1868, the land in controversy belonged to L. B. Davis..\n2. At that time Davis conveyed the said land to the defendant Davenport, trustee, by deed hereto attached and made part of this case, marked \u201c A.\u201d\n3. Davis and wife remained in possession\u2019 of said land from August, 1868, up to the present time.\n4. On May 20,1886, L. B. Davis and his wife, to secure a bond due by them to Alexander & Woodley, conveyed the said laud to Alexander & Woodley by the mortgage deed hereto attached and made part of this case, and marked \u201c B \u201d\n5. On March 19, 1887, Alexander & Woodley, in accordance with the provisions of said mortgage deed, sold the said lands at public biddings to the plaintiff Alfred Alexander, and executed to him the deed hereto attached, marked \u201cC.\u201d\n6. Joshua B. Davenport had no notice whatever of the execution by Davis and wife of the mortgage deed aforesaid, and Alexander & Woodley had no actual notice of the existence of the deed to Davenport.\n7. The rental value of the said land is fifty dollars per annum.\n8. Davis and wife have refused to give possession after demand, and now withhold the same, and Davenport has refused to convey the legal title to the plaintiff.\nIf upon these facts the opinion of the Court be with the plaintiff, judgment is to be rendered in his favor against Davis and wife for the possession of the land, and the sum of fifty dollars rent due, and the cost of this action, and against Davenport that he convey the legal title to the plaintiff; otherwise, judgment shall be rendered that the defendants go without day and recover their costs.\nThe defendant Ann E. Davis is the wife of the defendant L. B. Davis, and the deed referred to and marked \u201c A \u201d contains the following:\n\u201c In trust, that the said_ Joshua B. Davenport will hold the said Cool Spring tract to the sole and separate use of my wife, the said Ann Elizabeth Davis, and her heirs free and discharged from any debts, control or liability of me her said husband, and also to any such use or uses as she may at any time appoint by writing signed with her hand, whether by deed attested by one or more witnesses or by will executed in the manner required for the execution of wills.\u201d\nThe mortgage deed marked \u201c B \u201d was executed by L. B. Davis and Ann E. Davis his wife to M. M. Alexander and T. M. Woodley, to secure the payment of the sum of $500, with power of sale in default of payment upon the terms mentioned in the deed. This deed was witnessed by A. Armstrong. The private examination of the feme defendant was properly taken and the deed properly proved and registered. The land was sold by the mortgagees in accordance with the power of sale contained in the mortgage deed, and the plaintiff became the purchaser and the land was duly conveyed to him by the mortgagees.\nThere was judgment for the plaintiff and appeal by defendants.\nMessrs. W. D. Pruden and G. L. Pettigrew, for the plaintiff.\nMessrs. J. K Moore (by brief) and G. F. Warren, for the defendants.\"" }, "file_name": "0017-01", "first_page_order": 39, "last_page_order": 42 }