Summary
In Brodie v. Batchelor, 75 N.C. 51, the decision was, that a loan of money to the vendee to enable him to pay for the lot bought, and which was so used, did not subrogate the lender to the position and to the possession of the rights of the vendor who had been paid, and the (454) debt could in no proper sense constitute an obligations for unpaid purchase money.
Summary of this case from Lawson v. PringleOpinion
June Term, 1876.
Lien for Purchase Money — Homestead.
A borrowed of B. a sum of money for the purpose of paying for a lot, the title to which was made to A. and his wife. In action against A. for the money borrowed: Held, that the money so borrowed was no lien on the lot so purchased, and that A. was entitled to his homestead therein.
ACTION on a money demand, commenced in a justice's court, and carried by appeal to the Superior Court of WAKE and there heard before Watts, J., at June Term, 1876, upon a case agreed.
The following are the substantial facts: Batchelor, the defendant, borrowed of the plaintiff, Brodie, one hundred and sixty-five dollars, giving the other defendants as sureties. This money was obtained to pay for a lot in Warrenton, which was done, and the title went to Batchelor and wife. Failing to repay the money to the plaintiff at the time appointed, he was warranted and the plaintiff had judgment.
The justice of the peace who gave the judgment, issued execution in which he ordered the said lot to be sold absolutely, and not (52) subject to the homestead claimed by the defendant. From this order the defendant Batchelor appealed.
His Honor, on hearing the case in the Superior Court, reversed so much of the judgment of the justice as directed the lot to be sold absolutely, affirming the balance of said judgment. The plaintiff appealed.
Moore Gatling for appellant.
Batchelor Son, contra.
In Whitaker v. Elliott, 73 N.C. 186, Whitaker was the bargainor and Elliott the bargainee, who in payment for the land gave the plaintiff notes of third persons, which he endorsed, and thus made his own. There it was held that these notes were obligations contracted for the purchase of the premises, and that the defendant was not entitled to homestead against their payment.
In this case the plaintiff Brodie was not the bargainor. The defendant purchased of a third person, who has received the purchase-money, executed a deed, and has no cause of complaint. The bargainor is out of the case. The land was bought from A, the money was borrowed from B, transactions independent of each other, made at different dates, and in no wise connected the one with the other.
The language of the Constitution is, "but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises."
It is clear that the obligation must be contracted with the bargainor, and as the consideration for the purchase. The intent of the borrower to make a certain application of the money is not the measure of his liability. When he obtained the money it was his own, unaffected by any trust, and he could apply it or not in payment of his note for the land. It was not a contract of purchase of land, but a contract of borrowing. The consideration for the money was not land, but the note of the defendant with security for its repayment, (54) and the additional promise to make the plaintiff a mortgage of the land, which was void for want of writing.
The defendant is entitled to his homestead as against this debt.
PER CURIAM. Affirmed.
Cited: Lawson v. Pringle, 98 N.C. 453.