{
  "id": 8658398,
  "name": "IREDELL MEARES and E. B. MANNING, Receivers of the Carolina Interstate Building and Loan Association, v. W. B. DUNCAN and wife, EMILY F. DUNCAN",
  "name_abbreviation": "Meares v. Duncan",
  "decision_date": "1898-11-09",
  "docket_number": "",
  "first_page": "203",
  "last_page": "206",
  "citations": [
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      "cite": "123 N.C. 203"
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    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "117 N. C., 308",
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  "last_updated": "2023-07-14T16:57:12.442116+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "IREDELL MEARES and E. B. MANNING, Receivers of the Carolina Interstate Building and Loan Association, v. W. B. DUNCAN and wife, EMILY F. DUNCAN."
    ],
    "opinions": [
      {
        "text": "Furches, J.:\nThe defendant Emily F. Duncan became one of the stockholders and incorporators of the \u201cInter-State Building and Loan Association of Wilmington\u201d; that she subscribed for $1,000 of the capital stock of said concern which was issued to her ; that she then borrowed $1,000 in money from said Association, and she and her husband W. B. Duncan executed their bond and obligation to said Association therefor. And at the same time, the defendant W. B. Duncan and his wife, the said Emily F., made and executed a mortgage on the real estate of the said Emily F., to secure the payment thereof.\nThis statement of facts, about which there is no dispute, shows that this is the debt of the defendant Emily F. Duncan, evidenced by the bond of her, and her husband, W. B. Duncan. Mahoney v. Stewart, at this term.\nThis debt was secured by the mortgage of the husband and wife on the wife\u2019s property. This made the mortgaged property liable to the plaintiff for whatever may still be due thereon. This we do not understand the defendants to dispute, and the single question presented for our consideration is as to, whether there is still due on said debt the sum of $651.56, or only $498.66, with interest on the correct amount.\nThis corporation has become insolvent ; a creditor\u2019s bill has been filed and it is now in the hands of the plaintiff receivers for liquidation and settlement. It has been ascertained that the defalcations of the concern and the costs and charges incident to the winding up and closing out the same, amount to 30 per cent, of its assets. This is undisputed. But the defendant Emily F. claims that as she is a feme covert, she is not liable for this deficiency, but that she is entitled to have credited all that she has paid in to the concern upon her bond. And it is admitted that if she is so entitled, the amount still due is $498.66, but if she is liable for her part of the deficiency, then the balance due is $651.56.\nThe fund is now in the custody of a court of equity and to be administered according to the principles of equity. And \u00e1s the defendant Emily F. is one of the corporators and entitled to her part of the profits of the concern, if any had been made, equity says that she must bear her part of the losses as other stockholders have to do. Were she not so liable, 'the whole equitable settlement of the concern would be destroyed. She got in the same boat with the other stockholders, and as it sank she has to take her chances of escape\u2019 with the othei\u2019S, though she is a married woman. This is the equitable solution of the matter. But there is another solution that is more direct, and that is this :\nAs the expenses and losses had to be paid out of the assets of the concern,' and they have been ascertained to be 30 per cent, thereof, and her note being a part of the assets, and this expense and deficiency having first to be paid, she can claim no credits on her bond until this is paid. So, she has not, in legal contemplation paid this 30 per cent, on her debt, but paid it to the concern, which went to the expense and loss account; and' therefore she is not entitled to have it credited on her bond.\nThis matter has been very much discussed in Strauss v. B. & L. A., 117 N. C., 308; 118 N. C., 556; Thomas v. B. & L. A., 120 N. C., 420; Meares v. Davis, 121 N. C., 126, and we think the principle involved in this case is settled by those cases.\nIn our opinion the defendant Emily E. Duncan, as well as her husband, is liable to the plaintiffs for $651.56 and interest, and judgment should have been entered for that amount. There is error in the judgment, to this extent.\nError.",
        "type": "majority",
        "author": "Furches, J.:"
      }
    ],
    "attorneys": [
      "Messrs. Charles B. Thomas and Allen & Dortch, for plaintiffs (appellants).",
      "No counsel contra."
    ],
    "corrections": "",
    "head_matter": "IREDELL MEARES and E. B. MANNING, Receivers of the Carolina Interstate Building and Loan Association, v. W. B. DUNCAN and wife, EMILY F. DUNCAN.\n(Decided November 9, 1898.)\nBuilding and Loan Associations \u2014 Married Women.\nA married woman who becomes a stockholder in a Building and Loan Association, and also a borrower, her husband joining in the note and mortgage on her land to secure the note, must contribute pro rata to the expense and loss account in case of failure \u2014 just as she would have participated in the profits if it had been a success\n'Civil action for foreclosure of mortgage executed to the Building & Loan Association by Emily F. Duncan and her husband, tried before Adams, J., at March Term, 1898, of Superior Court of Carteret County.\nEmily F. Duncan became a stockholder in the Company and also a borrower of $1,000, for which she and her husband gave their note, with a mortgage on her land to secure it.\nThe Company failed and went into the hands of the plaintiffs as receivers. Its liabilities, and costs and charges of winding up amount to 30 per cent, of its assets.\nThe defendant, Emily F. Duncan, claims that by reason of her being a married woman she is not liable for any portion of this deficiency. If her contention is allowed, it was agreed that the amount due from her is $498,66 \u2014 but if she is liable then the balance due from her, and for which her laud is bound is $651.56, as claimed by plaintiffs.\nHis Honor adjudged that she was liable for $498.66 and gave judgment of foreclosure for that amount.\nPlaintiffs excepted and appealed.\nMessrs. Charles B. Thomas and Allen & Dortch, for plaintiffs (appellants).\nNo counsel contra."
  },
  "file_name": "0203-01",
  "first_page_order": 229,
  "last_page_order": 232
}