Opinion
(September Term, 1892.)
Lex Loci Contractus — Lex Rei Sitae — Laws of South Carolina — Consideration — Note — Mortgage — Account.
1. A note executed by a married woman in South Carolina, valid under the laws there, is valid here if for a sufficient consideration, though it be secured by a valid mortgage executed to convey lands in this State, but in such case there can be no judgment for foreclosure; she holds the land free from every lien on account of the mortgage.
2. As the plaintiffs by this suit upon the note elect not to accept her proposed surrender of the land and the annulment of the contract, no account for the rents and profits and for the purchase money paid for the land is necessary. As far as appears now the plaintiffs have a right to a judgment on the note, and the defendant feme covert has a right to keep the land.
3. The conveyance to her by deed executed in South Carolina of the land is a sufficient consideration to support the note.
ACTION upon a note and mortgage, tried at Spring Term, (232) 1892, of TRANSYLVANIA, before Hoke, J.
W. A. Gash and W. A. Smith for plaintiffs. (234)
T. F. Davidson for defendants.
The decision of the Court in this cause ( 106 N.C. 512) was founded on the facts as they then appeared, and it was correctly determined that both the note and mortgage executed by the feme defendant were void, because, as we were then informed, they were executed in this State. The admissions of the parties have now very materially changed their rights and liabilities.
It is conceded that the note sued on was executed in South Carolina; and it is a valid obligation of the feme defendant, since, by the laws of that state, she had power to execute said note and bind herself thereby, as if she were unmarried.
In the complaint, the plaintiffs demand judgment on this note, and upon the facts now admitted they are entitled to such judgment against the maker, Mrs. S. P. Wheeler. Taylor v. Sharp, 108 N.C. 377; Williams v. Carr, 80 N.C. 294. The feme defendant was (235) authorized by the laws of South Carolina to purchase the land, and the execution and delivery of the deed by A. C. Williams vested in her title to it, and this was of course a sufficient consideration to support the promise contained in the note. The mortgage made to secure it is void for the reasons stated in the opinion filed upon the former hearing of this cause ( 106 N.C. 512), but the plaintiffs, under the new aspect put upon the matter by the admissions of the parties, have the right to demand the enforcement of the contract made in South Carolina and take judgment for the amount due on the note. The effect of this action on their part will be to leave the title to the land in the feme defendant free from any lien of the alleged mortgage. As the plaintiffs, by this demand of judgment against her, elect not to accept her proffer to surrender the land and annul the contract of purchase, no account of rents or of purchase money paid by her is necessary. Her right is to keep the land. The plaintiff's right is to have judgment against her on the note, provided no valid defense is established on the trial.
ERROR.
Cited: Armstrong v. Best, 112 N.C. 63; Smith v. Ingram, 130 N.C. 106, 109; S. c., 132 N.C. 967; Bank v. Granite Co., 155 N.C. 45.
(236)