Keel Ex Rel. Keel v. Bailey

ClaeicsoN, J. Does the judgment by confession in favor of Bettie Bailey and against Robert Bailey constitute a legal, valid and enforceable lien upon the Dawes tract? We think so. In the judgment of the court below is the following: “That the judgment confessed by Robert Bailey in favor of Bettie Bailey on 29 September, 1930, in the sum of $6,900 and costs, and docketed on 1 October, 1930, in Book 11, page 143, in the office of the clerk of the Superior Court of Wilson County, be and it hereby is declared a legal, valid and subsisting lien upon the land situate in Wilson County known as the Ben Dawes tract, containing 46 acres, more or less.” N. C. Code of 1935 (Michie), sec. 614, is, in part, as follows — speaking of judgments: “. . . Is a lien on the real property in the county where the same is docketed of every person against whom any such judgment is rendered, and which he has at the time of the docketing thereof in the county in which such real property is situated, or which he acquires at any time thereafter, for ten years from the date of the rendition of the judgment . . .” A judgment by confession, like any other judgment, becomes a lien on the debtor’s real estate when docketed. C. S., 623-625; Bank v. McCullers, 201 N. C., 440 (444). *165 We Lave bere a valid judgment by confession, duly docketed, in favor of Bettie Bailey against Eobert Bailey. Tbe land in controversy, tbe Ben Dawes tract, containing 46 acres more or less, was conveyed to Eobert Bailey and wife, Bettie Bailey, as an estate by entireties on 11 February, 1927, by J. W. Bobbins, commissioner. On 17 July, 1931, Eobert Bailey and wife, Bettie Bailey, executed deeds (1) Bettie Bailey to Eobert Bailey, tbe Ben Dawes tract beld by entireties; (2) Eobert Bailey to Bettie Bailey, all bis right, title and interest in tbe Nasb County land. Tbe purpose of tbe parties was to make a division of tbe Nasb and Wilson County lands. On 18 July, 1931, Eobert Bailey (without joinder of bis wife, Bettie Bailey) executed a deed of trust to E. B. High, trustee, covering tbe Dawes tract, to secure an indebtedness of $365.00. This trust deed contains full covenants of warranty as to title. Tbe deed of trust was foreclosed and J. W. Keel et al., became tbe purchasers. Eobert Bailey is still living. Bettie Bailey died testate on 14 July, 1935, and Willie Bailey, one of tbe defendants, was appointed administrator c. t. a. of her estate. On 23 December, 1935, J. W. Keel and wife, Frances 0. Keel, conveyed tbe said Dawes tract to tbe plaintiff, Page Olark Keel, subject to tbe life estate of tbe grantors. On 13 January, 1938, Willie Bailey, in bis capacity of administrator c. t. a. of tbe estate of Bettie Bailey, issued execution to Wilson County on tbe judgment which Eobert Bailey confessed in favor of Bettie Bailey with tbe purpose of having tbe said Dawes tract sold under execution to satisfy tbe said judgment. Thereupon tbe plaintiff instituted this action on 3 March, 1938, to have tbe judgment declared not a lien on said land, and secured a temporary restraining order enjoining tbe defendant Willie Bailey, administrator c. t. a., and tbe defendant Sheriff of Wilson County, from proceeding with tbe execution sale. Tbe temporary restraining order was dissolved and vacated by tbe court below. In this we see no error. It is well established in this jurisdiction that a judgment obtained by a third party against either spouse is not a lien on land beld by them by tbe entireties. Hood v. Mercer, 150 N. C., 699; Johnson v. Leavitt, 188 N. C., 682. A judgment obtained by one spouse against tbe other is not a lien on property beld by them by tbe entireties. Mahen v. Ruhr, 293 Mo., 500, 240 S. W., 164, briefed in 35 A. L. R., at 152 (1922); Shinn v. Shinn, 4 L. R. A., 224 (Kan., 1889). Tbe learned discussion of the able attorneys in théir arguments and briefs as to whether one spouse can convey directly to tbe other in extinguishment of an estate by tbe entireties, is not necessary to be decided on this record. *166 (1) Tbe judgment by confession made by Robert Bailey to Bettie Bailey for $6,900, duly docketed on 1 October, 1930, is not disputed. (2) Thereafter, on 18 July, 1931, the deed of trust was executed by Robert Bailey to E. H. High, trustee, for the Dawes tract, without joinder of his wife. Plaintiff claims through this conveyance. (3) Bettie Bailey died on 14 July, 1935, and left surviving her husband, Robert Bailey. On her death the estate by entireties ceased and the Dawes tract held by the entireties vested in Robert Bailey, and the lien of the judgment immediately attached and had precedence over the deed of trust made subsequently by Robert Bailey to E. H. High, trustee, through whom plaintiff claims. In Linker v. Linker, 213 N. C., 351 (354-5), we find: “As to priority of the docketed judgments, in Moore v. Jordan, 117 N. C., 86, it is said: ‘The defendant Lewis contends that, as was the case under our former system, the lien when it attaches relates back to the day when the judgment was docketed. . . . Neither the court nor counsel have been able to find any decided cases on this question in any of the states except one in Oregon. . . .We are, therefore, to construe our statute, The Code, sec. 435 (C. S., 614), according to its meaning and on general principles of reasoning. . . . There seems to be no reason why priority should be allowed when the title to the land and the several liens occur at the same moment. There is no equitable ground on which to place it, because one judgment debt in the eye of the law is as just as any other, and there is no natural justice in the proposition. . . . Our conclusion is- that the proceeds of the land should be applied to the judgments pro rata/ Johnson v. Leavitt, 188 N. C., 682, 125 S. E., 490.” Recorded prior in point of time, we think the judgment lien will prevail over the attempted lien created by the deed of trust. See Bliss v. Brown, 78 Kan., 467, 96 Pac., 945 (1908); Leslie v. Harrison Nat. Bank, 97 Kan., 72, 154 Pac., 209 (1916); 15 R. C. L., sec. 284; Weil Bros. v. Casey, 125 N. C., 356; Trusl Co. v. Sterchie, 169 N. C., 21. If valid, in construing the deeds we think the language only applies to the division of the real estate and had no effect on the judgment. If the judgment was to be canceled, the deeds should have said so. For the reasons given, the judgment of the court below is Affirmed.