Rudasill v. Cabaniss, 225 N.C. 87 (1945)

March 28, 1945 · Supreme Court of North Carolina

225 N.C. 87

NINA C. RUDASILL v. CHARLES CABANISS, JR., and Wife, MARIE CABANISS.

(Filed 28 March, 1945.)

1. Husband and Wife § 11—

Where a husband purchases land, in the absence of his wife, and takes a deed to himself and wife as tenants by the entireties, giving the seller his unsecured note for the entire purchase price, the wife is not a maker of the note and cannot be held liable for its payment.

2. Husband and Wife § 4a: Gifts § 1—

The conveyance of an interest to the wife, the husband having paid or agreed to pay the purchase money, is presumed to be a gift from the husband to his wife.

3. Equitable Lien § 1: Vendor and Purchaser § 21—

. There is no lien for purchase money in North Carolina. A vendor cannot reserve a lien unless he take his security in writing and have it registered — in the shape of a mortgage or deed of trust.

Appeal by plaintiff from Armstrong, J., at November Term, 1944, of ClevelaND. Affirmed.

Civil action to recover balance due on an unsecured promissory note executed by defendant Charlie Cabaniss, Jr.

On 8 December, 1923, T. P. Cabaniss, with the joinder of his wife, conveyed to defendants as tenants by entirety a certain tract of land in Cleveland County. Charlie Cabaniss, Jr., was the purchaser, and the grantor accepted his promissory sealed note in the sum of $2,000 in payment of the purchase price. The feme defendant was not present at the bargain and sale, did not participate therein, and did not sign the note.' She was made one of the grantees at the request of her husband.

On 6 January, 1937, the maker of the note executed a renewal note for the balance then due in the sum of $1,000.

On 16 February, 1942, T. P. Cabaniss died testate. His personal estate was insufficient to pay his debts. As a result plaintiff, one of the devisees, to prevent a sale of the land, purchased the interest of the other devisees therein, arranged with the executor to take an assignment of all the personal property shown on the inventory and, in consideration thereof, assumed all the indebtedness of the testator. The settlement was approved by the clerk and the judge.

The assignment of the personal property, including the note of the male defendant, having been executed, plaintiff on 23 November, 1942, instituted this action to recover the balance due on the note.

Consent judgment bas been entered against tbe male defendant. When tbe cause came on to be beard to determine tbe liability of tbe feme defendant tbe facts were stipulated, trial by jury was waived, and tbe cause was submitted to tbe judge on tbe facts agreed. Tbe court below, being of tbe opinion that tbe feme defendant is not liable on said note, entered judgment dismissing tbe action as to ber, at tbe cost of plaintiff. Plaintiff excepted and appealed.

Falls <& Falls for plaintiff, appellant.

Henry B. Edwards for defendants, appellees.

Barnhill, J.

Tbe male defendant purchased certain land and tbe grantor, at bis request, made deed to tbe defendants as tenants by entirety. Tbe grantor in turn accepted an open, unsecured note signed only by tbe husband in payment or as evidence of tbe unpaid purchase price. It is this obligation that bas come into tbe possession of plaintiff. Upon it she bases ber cause of action. She is bound by its terms. Tbe feme defendant is not a maker and cannot be held liable for its payment.

Concede, as contended, that tbe note is conditional payment only and we have left an open, unsecured debt for tbe purchase price — -a debt of tbe purchaser, Charlie Cabaniss, Jr, who, under tbe original contract, was tbe sole obligor.

Tbe conveyance of an interest to tbe wife, tbe husband having paid or agreed to pay tbe purchase money, is presumed to be a gift from tbe husband to bis wife. Ricks v. Wilson, 154 N. C., 282, 70 S. E., 476; Flanner v. Butler, 131 N. C., 151; Trust Co. v. Black, 198 N. C., 219, 151 S. E., 269; Nelson v. Nelson, 176 N. C., 191, 96 S. E., 986; Tire Co. v. Lester, 190 N. C., 411, 130 S. E., 45.

Even so, plaintiff insists that tbe feme defendant received a part of tbe consideration and that simple equity requires that she pay, at least to tbe extent of tbe interest received. This contention is untenable.

Some jurisdictions, it is true, recognize and enforce an equitable lien for purchase money. But there is no lien for purchase money in North Carolina. Womble v. Battle, 38 N. C., 182; Blevins v. Barker, 75 N. C., 436; White v. Jones, 92 N. C., 388; Lumber Co. v. Lumber Co., 150 N. C., 282, 63 S. E., 1045; Jarrett v. Holland, 213 N. C., 428, 196 S. E., 332.

“It is a natural equity that when a vendor sells bis land, that be should have a lien upon it for tbe security of bis purchase money . . . tbe law tenders it to him in tbe shape of a mortgage or deed of trust properly registered. If be do not choose to avail himself of it, it is his own fault . . .” Womble v. Battle, supra. A vendor cannot reserve a lien unless be take bis security in writing and bave it registered. Blevins v. Barker, supra.

Tbe judgment below is

Affirmed.