Pope Co. v. . Harris

Ashe, J. (after stating the case). The sole question presented for our consideration is, was there error in the overruling the exception of the plaintiff? The exception of the plaintiff is founded upon a well-established principle of equity, that where one has a lien upon two funds, and another a lien upon only one of them, the former will be compelled to exhaust the subject of his exclusive lien before he can be permitted to resort to the other, and then only for the purpose of making up the deficiency. Harris v. Ross, 4 Jones Eq., 413; Williams v. Washington, 1 Dev. Eq., 137; Adams Equity, 506, note 1. This kind of equity is personal against the debtor, and is not binding on the paramount creditor, for no equity can be created against him by the fact that some one else has taken an imperfect security. But it is an equity against the debtor himself, that the accidental resort of the paramount creditor to the doubly-charged estate, and the consequent exhaustion of that security, shall not enable him to get back the second estate, discharged of both the debts. If, therefore, the paramount creditor resorts to the doubly-charged estate, the puisne creditor will be substituted to *65 his rights and will be satisfied out of the other fund, to the extent to which his own may be exhausted. Adams Eq., 507. This is the equity which the plaintiff, by means of his exception, seeks to enforce against the defendant Harris. It is the equity of marshalling the securities. Adams Equity, 506-7. But the equity of marshalling the securities is subject to the superior equity of the debtor to have a homestead. This is an equity, or a right, secured to the debtor by the Constitution, and is “superior to all creditors, except so far as it may be impaired by the voluntary act of the claimant himself.” Thjs principle is clearly announced in the very lucid opinion of Ruffin, Judge, in the case of Butler v. Stainback, 87 N. C., 216, which is a case so similar in the facts to the case under consideration, that it is needless to cite any other authority bearing on the question, as the principle announced in that ease is decisive of this. It was there expressly held, that the homestead of the debtor could not be defeated by invoking the equity of mar-shalling the fund. In that case, like this, the debtors had given a mortgage on their real estate to .secure a debt, without any reservation of their homestead rights, but afterwards executed to a trustee, a deed of trust conveying a considerable amount of personal property and effects to secure certain debts enumerated therein, among which was the debt secured in the mortgage, which,- with some others, were provided to be preferred debts. The plaintiff insisted that the lands conveyed in the mortgage should be sold, and the pi’oceeds applied to the debts secured in the mortgage, and exhausted, before those creditors should he allowed to participate in the funds in the hands of the trustee. The defendants, on the other hand, insisted that the funds in the hands of the trustee, should be applied ratably to all the preferred debts, including those secured in the mortgage which were in that class. His Honor,.in the Court below, sustained the contention of the plaintiffs, but his judgment was reversed in this Court. *66 Judge RuffiN, speaking for this Court, said : “ The deed of the 6th of February, 1882, (the deed of trust,) expressly provides that the debt due to Rountree & Co., (a debt secured by the mortgage,) shall share in the benefits of the trust with the other debts therein enumerated, as preferred. It matters not what motive prompted such a provision, the makers of the deed, who were the owners of the property conveyed, and therefore competent to dispose of it upon any terms not inconsistent with the policy of the law and the demands of good faith, have affixed to the trust this condition: that a ratable part of the fund raised thereunder should go to the debt of Rountree & Co. as a pro tanto exoneration of the land hitherto conveyed to them by mortgage. The plaintiffs while accepting the benefits of the trust, and seeking, as they are, to have benefits under it, cannot be permitted to object to the terms imposed.” In this case, both the plaintiffs in the action and the plaintiffs in the judgment and execution under which the homestead was laid off, were creditors in the second class of preferred creditors. And as in that case there was no lien upon the property when the trust was made, but the action under which the homestead was laid off' was not instituted until after the execution of the trust. So there was no creditor at the time whose debt was defeated by the deed of trust. We hold upon the authority of Butler v. Stainback, there was no error, and the judgment of the Superior Court is affirmed. No error. Affirmed.