CREECY v. PEARCE, Adm'r, et al. Judge became satisfied, that because of the insufficiency of the affidavit, or for other reason, the case was not properly constituted before him, it was his duty to dismiss the proceeding, notwithstanding he at Fall Term, 1872, failed to take the same view of the case. The concluding general remarks of Justice Boyden, in Brown v. Hawkins, sup., are to be construed in reference to the facts of that case, and particularly in reference to the fact that there had been an appeal to the Supreme Court, and an adjudication of the questions of law. No error. PER CURIAM. Judgment affirmed. MARY E. CREECY v. EDWARD PEARCE, Adm'r, et al. The widow of a mortgagor, as against the legatees and next of kin as well as against the heirs and devisees of her deceased husband, has a right to have the mortgaged land exonerated from the mortgage debts, but as against his other creditors she has no such right. As to them, she has only the right to have the two-thirds of the land not embraced in the dower, and the reversion of the dower sold, and the proceeds applied to the payment of the mortgage debt, and to have the residue of that debt, if any, paid rateably with the other debts of the deceased out of the personal assets, and if there still be any part of the mortgage debt unpaid, it will be a charge on the dower. This was a PETITION for dower, first heard before the clerk of the Superior Court of CHOWAN county, and afterwards before his Honor, Albertson, J. The facts of the case were shortly these: Augustus R. Creecy died in the county of Chowan in November, 1872, leaving the petitioner, his widow, and several children, who are defendants. In his life-time he owned a tract of land, which he mortgaged to one John Roberts, for fifteen hun CREECY v. PEARCE, Adm'r, et al. dred dollars, which remained unpaid at the time of his death. The defendant, Pearce, administered on his estate and found it to be insolvent. In her petition, the widow prayed to have the third part of the land exonerated, by having the mortgage debt paid out of the personal estate, and that part of the land not assigned to her for dower. The defendant, Hathaway, as a creditor, on behalf of himself and the other creditors, was made a party defendant and opposed the petition. The clerk of the Superior Court gave judgment in favor of the petitioner, which was approved by the Judge, and the defendant, Hathaway, prayed and obtained an appeal to the Supreme Court. No counsel appeared in this Court for the defendants. 1. Debts which are a specific lien on the property of an intestate, must first be paid to the extent of the value of the property to which the lien attaches. Act of 1868-'69, chap. 113, sec. 24. 2. The plaintiff has a right to require the application of the whole of the personal estate, or so much as is necessary to pay off the encumbrance, and exonerate her dower from the lien, and this through a payment of the debt. Thompson v. Thompson, 1 Jones 435; Klutz v. Klutz, 5 Jones' Eq. 80; Caroon v. Cooper, 63 N. C. Rep. 386. See also Smith v. Gilmer, 64 N. C. Rep. 546. PEARSON, C. J. A widow as against the legatees or distributies has an equity for exoneration, that is, to have a debt of her husband, which is a charge upon the land, paid out of the personal estate, it being the primary fund for the payment of debts. So a widow as against the divisees or heirs has an equity for exoneration. Carson v. Cowper, 63 N. C. Rep 386. Smith v. Gilmer, 64 N. C. Rep. 546. CREECY V. PEARCE, Adm'r, et al. In this case, the question is in regard to the right of the widow as against creditors of her husband. But for the mortgage on the land to secure the debt due to Roberts, the right of dower has priority over creditors in respect to the real estate. Suppose the widow relieves the land from this incumbrance, and take an assignment of the Roberts debt, she then stands in his shoes, and has a right to have the land sold, and proceeds of sale applied for the exoneration of her right to dower. This is clear, and there is no difficulty in respect to the land. When the widow, standing in her own shoes, or in the shoes of the creditor Roberts, insists that for her exoneration, the other creditors must give way, and let the debt of Roberts be first paid out of the personal estate, upon which neither she or Roberts have any lien or priority, this Court is unable to see any ground on which the claim can be supported. True, the personal estate is the primary fund for the payment of debts, but the defendant, Hathaway, and other creditors have the same right as against the personal estate as Roberts has; so the widow can take nothing by standing in his shoes, for his priority by force of the mortgage is only in respect to the land. Dower is not subject to the debts of the husband, except debts charged on the land, but on what principle is it, that a debt, because charged upon the land, is also to have priority in respect to the personal estate? We can see none, and the able counsel of the plaintiff did not suggest any that needs further comment. The judgment in the Court below will be modified so as to direct a sale of the two-thirds of the land not embraced by the dower, and the reversion in the other third, the proceeds of sale to be applied to the Roberts debt, and the residue of the Roberts debt to be paid rateably out of the personal estate in the course of administration, and if there LOVE and wife v. LOGAN et al. be still any part of the Roberts debt unsatisfied, it will be a charge on the dower land. We considered the question whether in the distribution of the personal estate, the Roberts debt ought to be taken pro rata on the whole debt, or on the debt, minus the amount that may be realized out of the mortgage. We are satisfied the latter is the true principle, for if the whole debt draws a dividend, the other creditors would have a right of subrogation so as to have the benefit of the collateral security. So the result would be the same; and we adopt the analogy in bankrupt cases where a creditor having collateral security is only allowed to prove the balance after exhausting the collateral security. The decision will be modified accordingly, and the cost be paid out of the fund realized by a sale of the real estate. This will be certified. PER CURIAM. Judgment accordingly. C. G. LOVE and wife v. J. W. LOGAN et al. A guardian who acted in good faith was held not to be responsible for omitting to collect a note during the late war, when it appeared that both of the two obligors were solvent during the war, and were made insolvent by its results. This was an ACTION upon a guardian bond, and upon a reference for an account the clerk allowed the guardian a credit for $140, the amount of a bond taken by him from Sullivan & Fronebarger, although he had failed to collect it. His Honor, Mitchell, J., at CATAWBA Superior Court reversed the order of the clerk in allowing this item, and the defendants appealed. There were other matters of difference which were settled by the counsel, and the above-mentioned LOVE and wife v. LOGAN et al. item was the only one brought before the Court, as will appear by the opinion. W. P. Bynum, for the defendants. SETTLE, J. When this case was called the record was found to be so imperfect that we should have sent it back had not the counsel, both for the plaintiffs and defendants,. relieved us, by announcing on the next morning that they had agreed upon all points of difference except the item of $140.44, being one-half of the Sullivan & Fronebarger note. It is not contended that the defendants were in any wise in default in respect to this note before the war. During the war, leaving out of view stay laws, it was not prudent to collect it, as both of the obligors were solvent. After the war the evidence shows that Sullivan became insolvent by the emancipation of his slaves, and in point of fact Fronebarger was also insolvent, although he did not admit it until 1867. The Federal soldiers had entered the defendants' store in 1865 and mislaid this note, so that the defendants did not find it for some time thereafter; but if it had not been mislaid, and the defendants had used all diligence, we do not think, in view of the evidence, that they could have collected it. The guardian seems to have acted in good faith, and has not been guilty of culpable negligence. This is only anotherof the many instances of losses consequent upon the war. The clerk allowed this item to the defendants, but was overruled by his Honor. In this there was error. Let this be certified to the end that the Superior Court may proceed to judgment in accordance with the agreement of the parties and this opinion. PER CURIAM. Judgment reversed. |