Action to Foreclose Mortgage — Mortgage — Non-Joinder of Wife — Judgment.
In an action to foreclose a mortgage on land given by the husband, in which his wife did not join, to gain time for and to secure the payment of a judgment against the husband, it was not error to give judgment for the debt only and refuse an order for the sale of the land.
MONTGOMERY, J.
In Hughes v. Hodges, 102 N.C. 262, this Court held that the husband alone might make a conveyance (517) of his lands by way of mortgage free from all homestead rights unless one or more of three conditions named in that case existed. One of those conditions was that there must be "an unsatisfied judgment, or judgments, that constituted a lien upon the land when conveyed and upon which execution might still issue and make it necessary to have his homestead allotted." In the case before us it appears that at the time of the execution of the mortgage by the defendant he was a married man and that his wife did not join him in its execution; and also that at that time there was a judgment against him procured at the March Term, 1887, of PENDER in favor of the plaintiff upon which execution had already been issued. The plaintiff's counsel in his argument before this Court laid great stress on the case of Hughes v. Hodges and on the silence of the record as to whether or not the judgment had been docketed. This is "sticking in the bark." The Court, in Hughes v. Hodges, had in mind fore the question as to whether there might be a necessity to allot a debtor his homestead under execution, than whether the judgment against him was docketed or simply filed away in the judgment roll. The execution in this case, whether issued upon the judgment roll or upon the entry of it upon the judgment docket, was in the sheriff's hands and he was compelled to proceed under it, and first of all to allot the debtor his homestead, and this meets substantially the ruling in Hughes v. Hodges, The mortgage on its face shows that the defendant was unable to pay off the execution, and he made it to get time and for the purpose of securing the payment of said judgment and costs on the first day of January, 1888. If the real estate of the defendant was worth the judgment debt or over and above the homestead, why was any additional security required in the way of the mortgage, seeing that the plaintiff had a judgment, either docketed or which he (518) could have had docketed any minute at no other expense and trouble than the costs attendant upon the execution of the mortgage?
The Judge below gave judgment simply for the debt, and refused to make an order for foreclosure, in which there is no error, and the judgment is
Affirmed.