Boyce v. Boyce
Boyce v. Boyce
Opinion of the Court
We hold that this appeal be dismissed. The petitioner will have her exception preserved to the entry of the order dismissing her second claim for relief and may appeal from the entry of a final judgment.
Appeal dismissed.
Dissenting Opinion
dissenting:
I agree with the majority that “A substantial right of the petitioner has been affected”; but contrary to the majority, I “believe it will work injury to the petitioner if this is not corrected before the final judgment.” I would hold that the trial court’s order is appealable under G.S. 1-277.
The pleadings reveal that the property is encumbered by two notes secured by deeds of trust. The first deed of trust was executed in 1976 in the original amount of $45,000. The second mortgage is in the sum of $5,731.29 and was executed in 1978. Furthermore, ad valorem taxes become a lien on the premises each January 1. Both the interest and the taxes are joint obligations of each party. Hence, the sooner the property is sold and proceeds delivered to the parties as their interests may appear, the less the loss to each party.
Petitioner-Wife has alleged that the entire loan proceeds have been used by Husband exclusively for his purposes and
In his response, Husband admits current monthly payments by himself on the notes until the filing of the action. These payments bar Husband’s plea of the statutes of limitation set forth in his third answer and defense.
If Wife prevails in her claim against Husband, her judgment will be a secured lien against his undivided interest in the land. See Wall v. Wall, 24 N.C. App. 725, 212 S.E. 2d 238, cert. denied, 287 N.C. 264 (1975). The loss of such security is a loss of a substantial right to which Wife is entitled.
Both parties seek a partition sale of the property under the same statute. The question of the proposed distribution of the net proceeds of sale is properly before us. An adjudication now will hasten the solution to their problem. A delay in decision by this Court, coupled with a subsequent appeal, can only cost the parties interest, either as an expense or as a loss of income on each individual’s share of proceeds from the sale, as well as an increase in taxes due. The loss of further security afforded by the possible judgment is likewise compelling. In my opinion, the judgment should be reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.