{ "id": 8682894, "name": "GWATHMEY & DOBIE and others v. EDW. PEARCE, Adm r. of AUG. R. CREECY", "name_abbreviation": "Gwathmey v. Pearce", "decision_date": "1876-01", "docket_number": "", "first_page": "398", "last_page": "401", "citations": [ { "type": "official", "cite": "74 N.C. 398" } ], "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": "73 N. C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697165 ], "opinion_index": -1, "case_paths": [ "/nc/73/0609-01" ] }, { "cite": "2 Jones' Eq., 416", "category": "reporters:state", "reporter": "Jones Eq.", "opinion_index": -1 }, { "cite": "4 Jones' Eq., 212", "category": "reporters:state", "reporter": "Jones Eq.", "case_ids": [ 2082945 ], "opinion_index": -1, "case_paths": [ "/nc/57/0212-01" ] } ], "analysis": { "cardinality": 413, "char_count": 6290, "ocr_confidence": 0.421, "pagerank": { "raw": 1.5463968599208327e-07, "percentile": 0.6738719129956997 }, "sha256": "a2df29293cc12c69247fd208fc2ed03e3f8ab83330916c15b13aa1b7da8be78c", "simhash": "1:cd57c18987a0f02a", "word_count": 1128 }, "last_updated": "2023-07-14T21:08:39.099656+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GWATHMEY & DOBIE and others v. EDW. PEARCE, Adm r. of AUG. R. CREECY." ], "opinions": [ { "text": "Heads, J.\nWhere a wife conveys her separate property to secure a debt of her husband\u2019s, the relation which she sustains to the transaction is that of surety. Purvis and wife v. Carstarphen, 73 N. C. Rep. 575.\nHere the wife joined her husband in the conveyance of his land in trust to pay his debt; in which land she had, under our dower statute, a vested right to dower, to be allotted after her husband\u2019s death; and she joined in the deed for the purpose of binding her dower. After her husband\u2019s death the whole laud, her dower included, was sold under the trust deed to pay the debt. This made the wife a creditor of her husband\u2019s estate, to the amount of the value of her dower in the land. That is the only point in this case. And it was rightly decided by his Honor.\nThere is no error. This will be certified.\nPee Curiam:. Judgment affirmed.", "type": "majority", "author": "Heads, J." } ], "attorneys": [ "No counsel in this court for the appellants." ], "corrections": "", "head_matter": "GWATHMEY & DOBIE and others v. EDW. PEARCE, Adm r. of AUG. R. CREECY.\n-A willow, who joined her husband before his death, in executing a deed of trust, to secure a certain debt of his, and conveying her right of dower in the only 1 ind held by them at the husband's death, becomes a creditor of her husband\u2019s estate to the amount of the value of her dower in the land.\n(The case of Parvis and wife v. Carstarphen, 73 N. C. Rep. 575, cited and approved.)\nExceptioNS to the account of an administrator, heard before the Probate Court of Chowan county, and thence carried by appeal to the Superior Court and again heard by Mure, J., at .Fall Term, 1875.\nHis Honor, presiding in the court below sends to this court, substantially, the following facts:\nAugustus R. Creecy died in November, 1872, and administration on his estate was granted to the defendant, Edward Pearce.\nOn the 21st of August, 1871, the intestate, Creecy, bought \u2022eertain lands, and on the same day he conveyed the same by trust deed, in which his wife, Mary E., joined to convey her iright of dower, to John Roberts to secure certain debts due him. Creecy nor his wife owned any other real estate whatever. No part was paid to Roberts during the life of Creecy, -but was still due at his death.\nAfter Creecy\u2019s death, his widow, Mary E., filed her petition against the administrator and heirs at law, praying that the administrator be directed to sell the personal estate of his intestate, the two thirds of the said land not encumbered by dower, and the reversion in the dower, (which had already been assigned to her,) and to apply the proceeds to the debt due Roberts, in exoneration of her dower.\nUpon appeal to the Supreme Court, reported in 69 N. C. Rep., 67, the prayer as to the personal estate was refused, and the following order made: That a sale be made of the two-thirds of the land not embraced by the dower, and the reversion in the dower, and the proceeds thereof be applied to the Roberts debt, and that the residue of the Roberts debt be paid rateably out of the personal estate in the course of administration; and if any part remain \u2022 yet unpaid of the Roberts debt, that the dower be sold and pay the same.\nThe administrator filed his petition \u2022 in obedience to said order to. sell the lands to make assets, and obtained license to do so on the usual terms.\nThe trustee, Roberts, claimed his right to sell under the trust, and according to its terms, and refused to permit the administrator to do so; but at the request of the administi-ator and the widow, sold according to the order of the Supreme Court: Eirst, two-thirds of the land; then the reversion in ,the dower; and finally, the dower right, which brought the sum of eight hundred dollars. The total sales of the said land was just sufficient to pay the debt to Roberts.\nThe estate* of the intestate paid about forty per cent, of its indebtedness. The widow demanded of the administrator three hundred and twenty dollars as her rateable share, being-forty per cent, of the value of her dower. This the administrator paid, and filed her receipt therefor, as a voucher for his disbursements, which was allowed by the Clerk. To this the plaintiffs, who were creditors of the intestate, excepted. The Clerk overruling the exception, the plaintiffs appealed to the Superior Court. Iu that court the judgment of the Clerk was affirmed, and the plaintiffs again appealed.\nNo counsel in this court for the appellants.\nGUlinin & Pruden, contra, submitted: That Mrs. Creecy, the widow\u2019s receipt is a proper voucher for that:\n1. Since the act of 1866, she has a vented right of dower in the lands of her husband, acquired after the marriage, of which his alienation could not divest her. Sutton v. Askew.\nShe conveyed that right to secure his debt to Roberts, and is his surety to that extent, and is entitled to be subrogated to the rights of the principal, Roberts, against her husband\u2019s personal estate to the amount 'of the payment made by her as as surety, i. e., to 40 per cent, of $800. 69 N. C. Rep., 67; Towe v. Newbdld., 4 Jones\u2019 Eq., 212 ; Brinson v. Thomas, 2 Jones\u2019 Eq., 416 (bottom); Adams\u2019 Eq., .269 ; 1st Eq. Leading Cases, 144 and 153; 2nd do. 226, 577 and 591 (3d American edition.)\n2. Roberts having twp funds, out of which to make hie claim, exhausted the widow\u2019s only one, her equity of substitution to Robert\u2019s rights against the second fund, the personal estate, is complete. Jones v. Zolliaffer, 2d Hawks, 625 j Greenlee v. McD., 3d Jones\u2019 Eq., 325; Story\u2019s Eq., Juris. 625 and cases cited there.\n3. Had Roberts looked to the personal assets first after selling two-thirds and reversion in land, he would have diminished that fund for the general creditor $320, and relieved the dower to the same extent. How are the general creditors damaged by the widow\u2019s claim then ? \u201c They lose not a cent.\u2019* Roberts \u201cgets but his due.\u201d \u201cThe widow gets back her dower diminished by her own charge.\u201d \u201cThe parties all have what they ought.\u201d Jones v. Zollicoffer, supra, specially Judge Ruepin\u2019s brief.\n4. The widow is considered in equity assignee of Roberts* claim. Myrow y. French 73 N. C. 609; Carter y. Janeo 5 Tree!., 193; 1st Loading Cases, 154 d seq.\n5. The personal estate is the primary fund out of which to pay the trust debt in the absence of equities changing the rule. Story\u2019s Equity Jurisprudence, 532; Coke Littleton, Buller\u2019s Note, 2 vol. 208 b.; Padkly v. Packly, 1st Yernon, 36." }, "file_name": "0398-01", "first_page_order": 408, "last_page_order": 411 }