Case v. Fitzsimons

Clarkson, J. The question involved in this controversy: When a purchase money deed of trust, in proper form, has been canceled at the [787] request, of the maker and a substituted deed of trust given therefor between the same original parties and to secure the same debt so as to more conveniently suit the ability of the maker to pay the debt, does the substituted deed of trust lose its status as a purchase money lien, thereby vesting the maker’s wife with an inchoate right of dower in the property? We think not, under the facts and circumstances of this case. N. O. Code, 1935 (Michie), sec. 1003, is as follows: “The purchaser of real estate who does not pay the whole of the purchase money at the time when he takes a deed for title may make a mortgage or deed of trust for securing the payment of such purchase money, or such part thereof as may remain unpaid, which shall be good and effectual against his wife as well as himself, without requiring her to join in the execution of such mortgage or deed of trust.” Section 4101 is as follows: “No alienation of the husband alone, with or without covenant of warranty, shall have any other or further effect than to pass his interest in such estate, subject to the dower right of his wife: Provided, that a mortgage or trust deed by the husband to secure the purchase money, or any part thereof, of land bought by him, shall, without the wife executing the deed, be effectual to pass the whole interest according to the provisions of the said deed.” Erom the agreed statement of facts, the court below in the judgment found “That upon the facts in this case the execution of the deed of trust in question was a continuation of the original purchase money deed of trust securing the purchase price.” In Grace v. Strickland, 188 N. C., 369 (372), speaking to the subject, it is said: “In 8 C. J., p. 443, sec. 656, it is said: Where a note is given merely in renewal of another note, and not in payment, the renewal does not extinguish the original debt nor in any way change the debt, except by postponing the time of payment.’ Bank v. Bridgers, 98 N. C., 67. If the second note be given and accepted in payment of the debt, and not in renewal of the obligation, a different principle will apply. Wilkes v. Miller, 156 N. C., 428; Collins v. Davis, 132 N. C., 106; Smith v. Bynum, 92 N. C., 108.” Kidder v. McIlhenny, 81 N. C., 123 (133) ; Terry v. Robbins, 128 N. C., 140; Dawson v. Thigpen, 137 N. C., 462 (470-1); Bank v. Howard, 188 N. C., 543 (547). The case of Chemical Co. v. Walston, 187 N. C., 817 (825), cited by defendant, we do not think is contrary to the position here taken. We think from the facts and circumstances of this case the wife of George B. Pettit has no dower rights in the lands in controversy. For the reasons given, the judgment of the court below is Affirmed.