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170 N.C. 102

86 S.E 988

Dalrymple v. . Cole

Supreme Court of North Carolina

Decided November 17, 1915

Supreme Court of North Carolina · decided 1915-11-17

<p>1. Deeds and Conveyances — Husband’s Deed — Homestead—Dower—Joinder of Wife»</p> <p>Where a husband conveys his land without having his wife join in the deed, the grantee acquires the land free from the right of the wife to a homestead, unless the same has been laid off therein to 'the husband (Const., Art. X, sec. 8; Revisal, sec. 686), but subject to the wife’s right of dower, should she survive him.</p> <p>2. Same — Contracts—-Value of Dower — Trials—Questions for Jury — Judgments.</p> <p>Where a husband has contracted to convey his lands for a certain consideration, and he has failed of performance thereof by reason of the refusal of his wife to execute the deed with him, and the purchaser seeks in his action to enforce the performance of the contract, diminished by the wife’s interest in the lands, it is proper that the question of the value of this interest be left to the jury and the purchase price accordingly diminished; and as this interest is only the value of her inchoate right of dower, it is reversible error for the trial judge to exclude from the consideration of the jury the value of this inchoate right and substitute the value of the homestead right, when the homestead has not been laid off to the husband, and there is no lien by judgment on the lands.</p> <p>3. Same — Mortgages.</p> <p>Where there is a mortgage on the lands of the husband executed properly by both husband and wife, and there is also a lien by judgment thereon, and the husband has contracted to sell these lands free from encumbrances and pay off the judgment out of the purchase money: Held, the execution of the mortgage by the wife releases both her homestead and right of dower to the mortgagee, and as the lien of the judgment has been agreed to be paid out of the purchase money, the purchaser is entitled to judgment that these liens be paid out of the purchase price and the lands be conveyed subject to the wife’s inchoate right of dower, the value of which to be ascertained by a jury and deducted from the purchase price.</p> <p>4. Deeds and Conveyances — Husband’s Deed — Mortgagee—Contracts—Dower —Tender—Payment into Conrt — Judgments.</p> <p>Where the husband has agreed to convey his lands free from encumbrances for a certain price, and there are liens by mortgage thereon, and his wife has refused to join in the conveyance, it is not required that the purchaser, in his action for specific performance, pay the sum agreed upon into court; for it is a sufficient tender when he alleges in his complaint that he was ready, willing and able to do so upon his getting the title for which he had contracted.</p>

Relies on Insurance Co. v. . Knox · Trogden v. . Williams · Cleve v. . Adams

Good law ✅— No negative treatment on recordhow we know

Decided 1915-11-17

How this case has been cited

Cited by 4 later decisions — most recently October 1957

4 state decisions

2019151920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1The defendant's appeal requires no consideration beyond the exception that the tender was not sufficient as the jury found under the charge of the court. We need not consider the exceptions as to the sufficiency of the tender, for the property was encumbered by liens beyond the contract price and it was not necessary that the plaintiff should pay $1,400 in court and lose the interest thereon during the five years that this litigation has been pending, while the interest was accumulating upon the liens. It was the duty of the defendant to have paid off and discharged these liens, and when the plaintiff alleged their existence and that he was ready, willing and able to pay the $1,400 into court the defendant should then and there have accepted the offer. Hardy v. Ward, 150 N.C. 385; Trogden v.Williams, 144 N.C. 192.

¶2Besides, as the defendant's wife refused to join in the conveyance, and it was necessary for the jury to ascertain the value of her inchoate right of dower, the plaintiff could not know until that was done the amount he should pay in, even if there had been no outstanding liens and encumbrances.

¶3The defendant is in default by the failure of his wife to join in the deed releasing her right of dower and in his failure to pay off the liens. He is in no condition to object that the plaintiff did not pay $1,400 in court until he could give a good and sufficient deed to the premises with a release by the wife of her inchoate right of dower or a deduction for the value thereof duly ascertained.

¶4Upon the facts of this case no more was necessary on the part of the plaintiff than the tender in his complaint of the amount of the purchase money upon the cancellation of the liens and the (109) tender of a good and sufficient deed on the part of the defendant with covenants of warranty. The judgment of the court that the defendant should specifically perform upon the plaintiff now paying into court the $1,400 purchase money with interest thereon from 13 January, 1911 (the expiration of the ninety days), was correct. It is not necessary to consider the exceptions, therefore, as to the actual manner and mode of the tender of the $1,400 before that time.

¶5No error.

¶6Cited: Schwren v. Falls, 170 N.C. 252 (1g); Wallin v. Rice, 170 N.C. 420 (1j); Watters v. Hedgpeth, 172 N.C. 312 (1g); Thomas v. Sanderlin,173 N.C. 335 (1j); Kirkwood v. Peden, 173 N.C. 463 (1g); Hall v. Dixon,174 N.C. 320 (1l); Dalrymple v. Cole, 181 N.C. 287 (S. c., 1f); Cheek v.Walden, 195 N.C. 755 (1g); Ins. Co. v. Knox, 220 N.C. 739 (j); Cleve v.Adams, 222 N.C. 214 (1l). *156

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