Bazemore v. . Mountain

DeKENuaNts' Appeal. Furches, J. We consider first the defendants’ appeal, for the reason that it is much fuller than the record in the plaintiff’s appeal — containing the evidence and charge of the Court, which is not set out in the transcript of the plaintiff’s appeal. This case was here at Eall Term, 1897, upon a judgment of nonsuit, and appeal by the plaintiff — reported in 121 N. C., 59. In that case, under the repeated rulings of this Court, we were compelled to take every fact which plaintiff’s evidence tended to prove, as proved; and under this rule of construction, we set aside the judgment of nonsuit, and awarded the plaintiff a new trial. In doing this, in that' appeal, Ave undertook to lay down the rules of law governing the case. And upon a careful examination of the record of the trial presented upon this appeal, we fail to see any substantial error. It is true that there is an exception to that part of the Judge’s charge, “That if the supplies were furnished on the faith of the husband’s promise that he and his AAÚfe Avould give a mortgage on her separate estate; and he had authority from his Avife to make such a contract, and the supplies Arere to farm the AAÚfe’s property, on the rents of which she was dependent for support, the jury will find the issue for the plaintiff — Yes.” • If the first part of this paragraph had stood alonei — “That if the supplies were furnished on the faith of the husband’s *316 promise that he and his wife would give a mortgage on the separate estate” of the wife, we think the charge would have been obnoxious to the exception of the defendant; but, when taken in connection with the balance of the paragraph, we do not think that it is. So far as we are able to see, the Court was authorized by the opinion of the Court in this case when here before, to give tile instructions it did. Indeed, it seems to us that the case was fairly tried under the rules laid down by the Court on the former appeal. The exceptions to the judgment, on account of a want of description of the defendant’s personal property can not be sustained. This property is described in the complaint as the feme defendant’s “mules and horses and farming implements, all of which she uses in the cultivation of hear said land for the use of herself, and the support of her said family.” It is true that this is n.ot a very specific description, but we think sufficient. Indeed, we do not see how it could have been much more specific. It can not be contended that the plaintiff should have given a, description of every horse or mule, or every piece of farming implement. And as we find no ground upon which the defendants’ exceptions to the evidence can be sustained, the judgment of Hie Court below must be affirmed. fur .PuaiNtivAs Appeal IN Same Case. Furches, J. The only question presented in this appeal is whether the feme defendant’s real estate is liable to sale under the plaintiff’s judgment. When the case was here before (121 N. C., 59), the opinion of the Court restricted her liability to her personal property, and we will have to do so now. This seems no longer to be an open question, whatever construction sec. 1826 of The Code may have *317 been liable to, before it was construed. But in Jones v. Craigmiles, 114 N. C., 613, and in Ulman v. Mace, 115 N. C., 24, the liability was limited to the personal property of the feme defendant. And in Bates v. Sultan, 117 N. C., 94, it is expressly held that the real estate of the feme defendant is not liable; and Bates v. Sultan is put upon Farthing v. Shields, 106 N. C., 289, where it was held that the feme's real estate was not liable. We have not discussed this question, but have contented ourselves by citing a number -of cases where the question seems to have been discussed and settled. We find no error in the judgment appealed from, and it is Affirmed.