Cleve v. . Adams

Barnhill, J. The motion made in the original action to set aside the .judgment against Sophronia Wall presented questions of fact and not issues- of fact. It was for the judge to hear the. evidence, find the facts and render judgment thereon. Monroe v. Niven, 221 N. C., 362, and -cases cited. The judgment entered, though so labeled, was not a judg *213 ment of nonsuit. It was a judgment fixing and adjudicating the rights of the parties. The parties to the motion to set aside the Wall judgment are the parties to this action. Plaintiffs herein, in making the motion in the cause and in instituting this action, had the same object in view — the invalidation of the Wall judgment. Although the form of the proceedings is not the same, the allegations made and the relief sought are identical. The validity of the judgment was adjudicated at the hearing on the motion. It cannot again be litigated in this action. Dillingham v. Gardner, ante, 79; Barcliff v. R. R., 176 N. C., 39, 96 S. E., 644; Mutual Association v. Fdwards, 168 N. C., 378, 84 S. E., 359; Ludwich v. Penny, 158 N. C., 104, 73 S. E., 228; Ingle v. Gassady, 211 N. C., 287, 189 S. E., 776; Ferguson v. Spinning Co., 207 N. C., 496, 177 S. E., 640; Hampton v. Spinning Co., 198 N. C., 235, 151 S. E., 266; Golirane v. Laughlin, 157 N. C., 282, 72 S. E., 1042; Batson v. Laundry Co., 209 N. C., 223, 183 S. E., 413. The additional documentary evidence — the note and mortgage— offered in the court below cannot affect this conclusion. Under our present system of pleading and practice a party is conclusively presumed, when sued in a second action on matters before litigated, to have set up in the former action all the defenses available to him. Ludwich v. Penny, supra, and cases cited. In any event, it has no bearing upon the regularity of the action in which the original judgment was rendered. But the plaintiffs assert further that the mortgage conveyed the homestead and subjected the land to sale under execution on the judgment. Hence, they say, the judgment is barred by the 10 year statute of limitations, C. S., 667, and that it should be so adjudged. The allotment of homestead suspended the running of the statute of limitations against the judgment. C. S., 667, C. S., 728; N. C. Const., Art. X, sec. 2; Barnes v. Cherry, 190 N. C., 772, 130 S. E., 611; Formeyduval v. Bochwell, 117 N. C., 320. This included the period from 31 August, 1927, to 13 December, 1938. It follows that the judgment is not barred unless the mortgage executed by Sophronia Wall 30 January, 1928, was a conveyance of the homestead within the meaning of C. S., 729; N. C. Const., Art. X, sec. 8. In this State mortgages are practically the same as at common law, with the exception of the mortgagor’s equity of redemption and its incidents. The legal title passes to the mortgagee, subject to the equitable principle that the passage of the legal title is primarily by way of security for the debt. For all other purposes, and as against all persons other than the mortgagee, the mortgagor is regarded as the owner of the land. Stevens v. Turlington, 186 N. C., 191, 119 S. E., 210; Gorrell v. Alspaugh, 120 N. C., 362; Weil v. Davis, 168 N. C., 298, 84 S. E., *214 395; Bank v. Jones, 211 N. C., 317, 190 S. E., 479; Duplin County v. Harrell, 195 N. C., 445, 142 S. E., 481; Mitchell v. Shuford, 200 N. C., 321, 156 S. E., 513; Riddick v. Davis, 220 N. C., 120, 16 S. E. (2d), 662. Except as against tbe mortgagee, be retains all tbe incidents of ownership. His estate therein may be devised or conveyed and it is subject to dower and to sale under execution. Stevens v. Turlington, supra; Weathersbee v. Goodwin, 175 N. C., 234, 95 S. E., 491; Willington v. Gale, 7 Mass., 138; Bispham’s Equity, sec. 151; 27 Cyc., 1234. He may maintain an action for trespass even after default. Bank v. Jones, supra. On tbe contrary, until foreclosure, or at least until possession is taken, tbe mortgage, as a general rule, is regarded and dealt with as a chose in action. A transfer of tbe debt transfers tbe mortgage security and a conveyance by tbe mortgagee — except under foreclosure — merely operates as an assignment of tbe mortgage. And if tbe mortgagee dies bis interest in tbe mortgaged premises goes, not to tbe heirs, but to tbe personal representative. Stevens v. Turlington, supra. Furthermore, that a homestead may be allotted in mortgaged land is well settled in this and other jurisdictions. Cheek v. Walden, 195 N. C., 752, 143 S. E., 465, and cases cited; Crow v. Morgan, 210 N. C., 153, 185 S. E., 668; Chemical Corp. v. Stuart, 200 N. C., 490, 157 S. E., 608; Miller v. Little, 212 N. C., 612, 194 S. E., 92. See also Anno. 89 A. L. R., 511, particularly at pp. 526 and 530. It would seem to follow, of necessity, that a conveyance of tbe land embraced in a homestead by mortgage after tbe homestead is allotted does not serve to destroy tbe exemption or to revive tbe right to issue execution on an outstanding and unsatisfied judgment. "We so conclude. In so bolding we are not inadvertent to Dalrymple v. Cole, 170 N. C., 102, 86 S. E., 988. It is there stated “tbe defendant and wife, by executing tbe mortgage deeds referred to, bad already conveyed their homestead in tbe land in question within tbe meaning of section 686 of tbe Revisal, and tbe defendant cannot now be beard to claim a homestead therein.” Apparently this question was not raised and tbe statement is nothing more than dictum. In any event, it is not in accord with the authorities in this and other jurisdictions. 'Whether plaintiffs are guilty of laches in waiting 13 years to attack tbe judgment they seek to annul, as found by tbe court below, we need not now decide. See Monroe v. Niven, supra. Tbe judgment below is Affirmed.