Davis Gregory, in the course of their business as tobacco dealers, borrowed $5,000 from the Bank of Oxford, and the wife of Gregory conveyed her land in Northampton County to the defendant, B.P. Thorp, Trustee, to secure the payment of the note. Davis Gregory were largely indebted otherwise to the bank and had consignments of tobacco with Arrington Scott, of Richmond, who remitted to the Bank of Oxford, which, together with other payments made by W. H. Davis, the managing partner, were credited on the unsecured debts of Davis Gregory. The plaintiffs allege that, at the time of the execution of the trust deed by Mrs. Gregory, it was agreed that the funds coming to the bank from the sales of tobacco in the hands of Arrington Scott should be first applied to the payment of the debt secured by her land. This agreement the defendant receiver and the former president and cashier of the bank deny, and they allege that whenever remittances were made by Arrington Scott, or other payments made by W. A. Davis, they were applied — sometimes in the presence and always with the knowledge and consent of said Davis — to the other and unsecured debts of Davis Gregory.
The bank of Oxford was, by proper proceedings in Wake Superior Court, in 1892, placed in the hands of the defendant, Lassiter, as *Page 124 receiver, who in the course of collecting its assets, required the defendant, Thorp, to sell the land of the feme plaintiff which had been conveyed to secure the $5,000 note. A restraining order was granted at the instance of plaintiffs, and, on hearing the motion at Weldon on (130) the affidavits and exhibits, the injunctions was continued to the hearing, and defendants appealed. The feme plaintiff, having put a lien on her land to secure a debt due from the firm of Davis Gregory to the bank of Oxford, thereby became in effect a surety for the payment of said debt to the extent of the property so encumbered by her. Shinn v. Smith, 79 N.C. 310. It is distinctly alleged in her behalf that, at the time she imposed this burden on her separate estate, it was agreed between all the parties that the proceeds of the sale of certain tobacco (the property of Davis Gregory) should be paid to the bank, and should be applied by it to the debt for which she had made her land liable, as above stated. It is not denied that the bank received these funds, and they were sufficient to pay of the debt. But the defendant produces evidence tending to show that there was no agreement on the part of the bank that these funds should be applied as the feme plaintiff insists they should have been, and says that they were rightfully applied on other indebtedness of the firm to the bank.
It thus appears that there is a serious issue of fact between the parties. If that issue is, upon the trial, found in favor of the plaintiffs, her land will be exonerated and she will be entitled to have the deed in trust canceled. So this case is brought clearly within the principle established by Whitaker v. Hill, 96 N.C. 2; Harrison v. Bray,92 N.C. 488, and Caldwell v. Stirewalt, 100 N.C. 201, and the cases there cited.
NO ERROR.
Cited: Meroney v. B. L. Assn., post, 845; Weil v. Thomas, 114 N.C. 201;Harrington v. Rawls, 136 N.C. 67; Long v. Guaranty Co., 178 N.C. 509. *Page 125
(131)