Alexander v. . Davis

Davis, J. (after stating the case). It is insisted for the defendants that “ the power of the wife was to appoint to a use or uses by deed or will ” executed in the manner directed by the deed from L. B. Davis to the trustee Davenport, and that the mortgage is not such an execution of the power as was contemplated and authorized, and that it is inoperative *20 to convey the land. It is also objected that the trustee did not join in the deed. The trustee held the naked legal title for the purposes set out in the deed, and upon the conveyance by the wife in conformity with the requirements of the deed the legal title should follow. Conceding, as was held in Hardy v. Holly, 84 N. C., 661, that the power of disposition by the wife is not absolute, but is limited to the mode and manner pointed out in the deed made for her benefit, in the case before us there was a compliance with every requisite of the deed and every requirement of law necessary to give effect to the disposition of the use made by her. Newhart v. Peters, 80 N. C., 166, and cases there cited; Frazier v. Brownlow, 3 Ired. Eq., 237 ; Miller v. Bingham, 1 Ired. Eq., 423; Newlin v. Freeman, 4 Ired. Eq., 312. It is said by counsel for’defendants that “ the power to sell does not convey ordinarily a power to mortgage.” Admit this to be so in conveyances to trustees for purposes of sale only, the deed to Davenport is very different; it conveys to him the mere legal title, to be held for the feme defendant and to such “use or uses as she may at any time appoint” in the mode designated. The absolute power of disposal is in her limited only by the mode pointed out, and by it the trustee is not required to join in the deed. The husband and wife can by deed of mortgage, executed, proved and registered as required by law, convey the wife’s lands and subject them to the paynient of debts or other liabilities. Newhart v. Peters, supra; Norris v. Luther, 101 N. C., 196, and cases cited. This is also sustained by Hardy v. Holly, and the authorities there cited. No question was made in the ruling in that case as to the power of the wife to make a mortgage, but there was a failure to comply with the provisions of the instrument creating the separate estate of the wife. That is not so here. There is no error. Affirmed.