Weathersbee v. . Farrar

Sjíith, C. J., (after stating the facts). Out of these facts arise the questions of law which alone are open for revision on the appeal; and, without considering them separately in detail, we will endeavor to extract the substance, and dispose of them all. The present action, begun on September 28th, 1883, by Weathersbee, the grantor, and the trustee and/eme creditor secured in the last deed, against Farrar, the mortgagee, has for its object the taking of an account of the administration of the trust funds in his hands; and the recovery of whatever excess there may be, after discharging the mortgage debt and the expenses incidental to the execution of the trust. To this end, the reference was ordered, and upon the findings and rulings, the sum of $1,097.18 ascertained to be in the hands of the defendant, after allowing all admitted and *110 just charges, which belongs to and should be paid over to the parties interested in the .second deed. I. The first contention in the argument for the appellant is, that inasmuch as the disallowed advances were essential to the gathering and securing of the crop, and without •which it might have been lost, or its quantity and value greatly reduced, this expense should be provided for and come out of the sales, as a paramount claim. Such is the doctrine in admiralty, in favor of those who by personal efforts and at great peril, save vessels and cargoes exposed to shipwreck and the dangers of the sea. But it is not a principle of the common law, nor recognized when in conflict with statutory regulations in reference to liens. As soon as the trust fund satisfies the demand to which it is primarily devoted, the surplus belongs to the second or trust deed, and cannot be diverted to any other use. The right to this appropriation is given by the law, and is outside and independent of the defendant’s knowledge of the existence of the deed. But it was on the registry, accessible to him, the veiy purpose of which was to prevent the excuse now made.. It was his own fault if, without making any inquiry, he chose to withdraw the cotton from his own attaching trusts, and improperly use it in the payment of an unsecured debt. This he is not permitted to do, to the detriment of the plaintiffs, and the assumed necessity for the expenditure in the preservation of the cotton, without the •concurrence of the/eme plaintiff and her trustee, cannot have the effect of crowding out of its place their right to what remains after satisfying the first mortgage. II. It is next insisted, and this is pressed with earnestness, that the feme plaintiff has acquiesced in this disposition of the fund, and that it would be a fraud in her now to set up any opposition thereto. We do not find in the facts any support given to the argument. The feme plaintiffhad no information of any arrange *111 ment between the defendant and her husband, whereby these advances were to be put in front of her demands, and paid from the sales of the crop. Nor did her trustee know of it, or give an implied assent even, to the misappropriation. The transaction was entered upon and consummated between them, before either the trustee or the feme plaintiff were aware of what was going on. Her information was obtained, when in January the account in this form -was presented to her husband, and it became the subject of conversation at his sick bed, and then she was silent. No declaration or act of hers induced the making the advances, or involves any ingredient of fraud. What vras clone was simply between her husband and the defendant, and can have no binding effect upon her. The rule invoked in his aid cannot have the same rigorous application to one under coverture and incapable of making a personal contract except in special cases, as it has to such as are under no disability. In Towles v. Fisher, 77 N. C., 437, Rodman, J., after examining the cases cited in Biglow on Estoppel, says: “ They all concur, that a married -woman who is under a disability to contract, cannot be estopped by anything in the nature of a contract. To estop a married woman from alleging a claim to land” (the case then before the Court), “ there must be some positive act of fraud, or something done upon -which a person dealing -with her, or in a manner affecting her rights, might reasonably rely, and upon which he did rely, and was thereby injured. No one can reasonably rely upon the contract of a married woman, or on a representation of her intentions, which at best is in the nature of a contract, and by which he must be presumed to know that she is not legally bound.” Unless the element of fraud is present in the declarations or conduct of a woman under coverture, upon the faith of which another has acted to his own injury, and which may *112 reasonably be supposed to induce him to act, she cannot’ lose any of her just rights of property. Burns v. McGregor, 90 N. C., 225; Loftin v. Crossland, 94 N. C., 76; Boyd v. Turpin, Ibid., 137, and cases cited. These views, we believe, cover the essential subject-matter of the rulings upon issues of law, and leave little more to be said. The account is adjusted upon the basis of requiring the defendant to pay over what is left of the proceeds of the entire trust estate, including the cotton and other personal articles, after discharging his mortgage, towards the-debts due the feme plaintiff, deducting, however, therefrom her own personal indebtedness, and this is in our opinion a proper settlement of the controversy. In the rulings there is no error, and the judgment is-affirmed. No error. Affirmed.