Davis v. . Lassiter

Bukwell, J.: The feme plaintiff, having put a lien on her land to secure a debt due from the firm of Davis & Gregory to the Bank of Oxford, thereby became in effect a surety for the payment of said debt to the extent of the property so encumbered by her. Shinn v. Smith, 79 N. C., 310. It is distinctly alleged in her behalf that, at the time she imposed thii?burden on her separate estate, it was agreed between all the parties that the proceeds of the sale of certain tobacco (the property of Davis & Gregory) should be paid to the bank, and should be applied by it to the debt for which she had made her land liable, as above stated. It is not denied that the bank received these funds, and they were sufficient to pay off the debt. But the defendant produces evidence tending to show that there was no agreement on the part of the bank that these funds should be applied as the feme plaintiff insists they should have been, and says that they were rightfully applied on other indebtedness of the firm to the bank. It thus appears that there is a serious issue of fact between the parties. If that issue is, upon the trial, found in favor of the plaintiffs, her land will be exonerated and she will be entitled to have the deed in trust cancelled. So this case is brought clearly within the principle established by Whitaker v. Hill, 96 N. C., 2; Harrion v. Bray, 92 N. C., 488, and Caldwell v. Stirewalt, 100 N. C., 201, and the cases there cited. No Error.