Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-01-14
COURT DECISIONS.
DIoESTED BY w. B. MARTIN.
Exclusively for virgin:an- Pilot.)
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
WE'LL v. CASEY.
Supreme Court of North Carolina.
December 5, 1889.

Supreme Court of North Carolina.
December 5, 1889.
WHEN A JUDGMENT DEBTOR
PURCHASES LAND AND IMME-
DIATELY MAKES A MORTGAGE
ON IT TO SECURE A DEBT NOT
FOR IT'S PURCHASE MONEY,
SUCH MORTGAGE IS SECOND TO
THE JUDGMENT LIEN.
THE LIEN OF A JUDGMENT
AGAINST ONE WHOSE HOME
STEAD is allotted is PRIOR TO
A MORTGAGE SUBSEQUENTLY,
MADE ON LAND OTHER THAN
THE HOMESTEAD.
The questions in this case were as
70 the priorities of certain liens. The
points decided appear from the opinion
Of the court.
The court says:
The question for decision is, does
mortgage, executed simultaneously
with the delivery of the deed from the
grantor to the mortgagor. for another
consideration than the purchase money
Oh the land conveyed. and to a person
other than the grantor, with the un-
oerstandinS between the mortgagor
ana that other person at the time of
the execution of the deed by the grant
or that the mortgage should be SO
made, hold good against the then ex-
lsting judgments against the mort
gagor?
IN all the cases cited the consdera-
'ion OIL the mortgage was the purchase
money OIL the land, and 1t was stated
IN Moring VS.. Dickerson, in substance
n h. I'll
upon the view that the seisin of the
grantee was but for the instant, and
mat 1t was never intended to be in
MIN nenehcially at all. but that the real
purpose was to convey the title to the
mortgage as n security for the money
advanced. The reason why the title
dld not vest in the purchaser of the
land is that the purchase money had
oeen advanced by the mortgagee and
when the court said that, because the
deed and mortgage are executed
simultaneously, they are concurrent
transactions, !. c., one transaction, it
was only to say that. If there had been
ian interval between the delivery of the
deed and the execution of the mort
gage, then the Judgment liens would
nave attached, for a. title would have
vested In the grantee because OF the
interval. This learning may be found
In Freeman on Judgments (section 373).
which says: mo doubt one against
whom judgment has already been
docketed may purchase land, and at
the same time he receives his purchase
money, a. mortgage which shall take
precedence over the Judgment as lien
on the land purchased. The
reason assigned for this is that, the
conveyance and the REMEMBRANCE being
Simultaneous t.
Tor the Judgment lien to attach. But
1t has also been decided that If, upon
acquiring land. the Judgment debtor
Immediately executes a mortgage, not
for the purchase money. the lien OF the
mortgage will be subordinate to that of
the judgment"
The plaintiffs, We'll & Bros, more
over, contend that. If the Judgment
creditors Grady and Morris had been
entitled to the relief demanded. the
homestead right of the defendant Ca
sey would intervene, to prevent the ap-
plication of any part of the proceeds
of the sale to the creditors, until the
homestead had fallen in. We hardly
understand this contention, because Ca
sey and his wife were before the court
and the order of safe Of tire tanti.- I'm
Guiding the homestead was made with
out exception or protest on their part
But, II there had been exception, we do
not see how it could have awaited; for
In Gulley V. Thurston, it was decided
that the lien of a judgment was supe-
rior to that of subsequently registered
mortgage made on property outside of
the debtors allotted homestead The
homestead in the present case had been
duly allotted to the defendant Casey,
and no objection had been made to the
allotment. There was error I'm the judg-
mcnt of the court below in Diminishing
the petition of the judgment creditors
Grady and Morris. They were entitled
TO have tho amount rr;pn{noI ;,to,o-4