{
  "id": 11272656,
  "name": "T. C. McBRAYER v. R. M. HARRILL",
  "name_abbreviation": "McBrayer v. Harrill",
  "decision_date": "1910-05-27",
  "docket_number": "",
  "first_page": "712",
  "last_page": "713",
  "citations": [
    {
      "type": "official",
      "cite": "152 N.C. 712"
    }
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  "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": "125 N. C., 489",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "95 N. C., 504",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
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    {
      "cite": "44 N. C., 283",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11276222
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      "opinion_index": 0,
      "case_paths": [
        "/nc/44/0283-01"
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    {
      "cite": "12 N. C., 582",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "111 N. C., 103",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8650649
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      "opinion_index": 0,
      "case_paths": [
        "/nc/111/0103-01"
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  "analysis": {
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  "last_updated": "2023-07-14T16:29:47.463636+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "T. C. McBRAYER v. R. M. HARRILL."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nThis is an action by the plaintiff (appellant) to recover out of the defendant, administrator, and the surety on his administration bond a sum due by the defendant\u2019s intestate wbicb was secured by a second mortgage on realty, which mortgage was unregistered at the date of the debtor\u2019s death and remained so for some time after the- order to sell the realty to make assets.\nThe appellant states in his brief: \u201cThe sole question before the Court is, Will a mortgage not recorded till after the death of the mortgagor create a lien from the date of its registration as against other simple debts?\u201d But, in fact, no subsequent registration is necessary.\nRevisal, 982, provides that a mortgage shall be a lien only from its registration. But as between the parties a mortgage or deed is valid without registration. Wallace v. Cohen, 111 N. C., 103; Deal v. Palmer, 12 N. C., 582; Leggett v. Bullock, 44 N. C., 283. The personal representative stands in the shoes of his testator or intestate, and the unregistered mortgage has the same lien'as it had between the parties. The mortgaged property brought enough to pay both mortgages, over and above the costs of the sale. After paying off the costs of sale, including defendant\u2019s commissions on the sale and the taxes on the mortgaged property and the first mortgage, the surplus left should have been applied to the lien of plaintiff\u2019s unregistered second mortgage. It was a specific lien with priority over all other classes of debt (Rev., 87 (1)), to the extent of the net proceeds of the realty covered by the mortgage. Jones on Mortgages (6 Ed.), sec. 509; Jones Chattel Mortgages, sec. 239, which are cited with approval, Williams v. Jones, 95 N. C., 504; Hinkle v. Greene, 125 N. C., 489. It seems that the personal representative of the debtor applied the proceeds of the sale of the realty, after paying off the amount of the first mortgage, to other claims, after notice of the plaintiff\u2019s unregistered mortgage. He was.evidently under the erroneous impression that the plaintiff\u2019s mortgage being unregistered at the death of the mortgagor, the plaintiff had no specific lien. This was error. The judgment below is \u2022\nReversed.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "JR. 8.'Eaves and B. A. Justice for plaintiff.",
      "McBrayer, McBrayer c& McBorie for defendant."
    ],
    "corrections": "",
    "head_matter": "T. C. McBRAYER v. R. M. HARRILL.\n(Filed 27 May, 1910.)\nDeeds and Conveyances \u2014 Mortgagor and Mortgagee \u2014 Registration \u2014Original Parties \u2014 Executors and Administrators.\nAs between the original parties, the lien of an unregistered mortgage holds, and the personal representative of a deceased mortgagor stands in the shoes of the latter: lienee, the plaintiff holding an unregistered second mortgage on the lands of the defendant\u2019s intestate is entitled to his lien upon the funds derived from the sale in excess of the first mortgage, in preference to other creditors of deceased.\nAppeal by defendant from Justice, J., at the August Term, 1909, of Ruthekeoed.\nThe facts are sufficiently stated in the opinion of the Court.\nJR. 8.'Eaves and B. A. Justice for plaintiff.\nMcBrayer, McBrayer c& McBorie for defendant."
  },
  "file_name": "0712-01",
  "first_page_order": 760,
  "last_page_order": 761
}