Atkins v. Crumpler

• Decision Date: 31 March 1896
• Citation: 24 S.E. 367,118 N.C. 532
• Parties: ATKINS v. CRUMPLER et al.
• Court: North Carolina Supreme Court

24 S.E. 367

118 N.C. 532

ATKINS v. CRUMPLER et al.

Supreme Court of North Carolina

March 31, 1896

Appeal from superior court, Sampson county; Graham, Judge.

Action by F. T. Atkins against J. M. Crumpler and others. Judgment for plaintiff, and defendants appeal. Reversed.

It was admitted that prior to May 30, 1873, Irvin Owens was the owner in fee of the land described in the complaint, and that he died prior to that date, leaving E. J. Hobbs and the other heirs and the husbands of such as are married, defendants in this action. By consent, the following issue was submitted to the jury: "Are the defendants J. M. Crumpler, O. W Owens, J. R. Owens, T. J. Owens, and W. R. Owens indebted to plaintiff, and if so, in what amount? Ans. $1,213.85, with interest, less $35, credit." It was admitted that on May 30, 1873, W. H. Hobbs and wife, Eliza, J. M. Crumpler and wife, Virginia, T. Fisher and wife, Elizabeth, O. W. Owens M. M. Owens, M. N. Owens, and J. R. Owens, conveyed the land to T. M. Lee, by mortgage, with power of sale; that there was a default in the same, and the land was sold thereunder, and conveyed to plaintiff. Plaintiff introduced a note, dated February 10, 1887, for $1,115, to A. F. Johnson, cashier of the Clinton Loan Association, which was secured by mortgage upon the land, of even date with the note. The note and mortgage were executed by T. J. Owens, W. R. Owens, Julia J Owens, J. M. Crumpler and wife, J. R. Owens, and Lola Owens and was indorsed by F. T. Atkins. The mortgage authorized Johnson or his assigns to sell the land in default of payment of the debt secured. It was admitted that the Clinton Loan Association was an unincorporated jointstock company, and that, under the articles between the members of said association, the title to all the property was held by the cashier. It was also admitted that Johnson was cashier at the time of the execution of the note and mortgage, and was succeeded as such cashier by W. L. Faison. Plaintiff offered a deed from Johnson, cashier, to Faison, cashier, which transferred and conveyed the note and mortgage. Defendants objected, on the ground that the association was a partnership, and that Johnson, cashier, one of the partners, could not convey alone. Objection overruled, and defendants excepted. The land was sold under the mortgage by Faison, cashier, and Atkins, the plaintiff, became the purchaser, at the price of $1,213.85. Plaintiff offered the deed from Faison, cashier, to plaintiff, conveying the land in pursuance of the sale, of date January 30, 1890. Defendants objected, on the ground that Faison, cashier, had no power to sell the land and make title to the purchaser. Objection overruled, and defendants excepted. Plaintiff also introduced in evidence a bond for title, dated February 1, 1889, by which plaintiff agreed to convey the land to J. M. Crumpler, O. W. Owens, J. R. Owens, T. J. Owens, and W. R. Owens, upon payment to him of $1,213.85, with 8 per cent interest from January 9, 1889, which sum the parties agreed to pay, upon which amount the plaintiff admitted had been paid the sum of $15 March 14, 1892, and $20 March 1, 1892. Defendants offered in evidence a bond for title conveying the land from Atkins (January 3, 1882) to the same defendants to whom the bond for title of January 9, 1889, above referred to, was given. Objected to by plaintiff; objection sustained; and defendants excepted. Defendants offered in evidence a note for $640.67, dated January 30, 1882, bearing 12 1/2 per cent. interest, from the defendants (who executed the note and mortgage to Johnson, cashier) to T. F. Atkins. Objected to by plaintiff; objection sustained; and defendants excepted. Defendants offered in evidence a judgment rendered in this action at February term, 1894. It was admitted that this judgment was subsequently set aside. Plaintiff objected; objection sustained; and defendants excepted. Defendants offered one of the defendants, O. W. Owens (he being the same Owens who is a party to the bond for title, of date February 9, 1889), and offered to show by him that plaintiff received all the money on the note and mortgage of February 10, 1887. Plaintiff objected; objection sustained; defendants excepted. A. M. Lee was introduced as a witness for defendants, and testified that he had been a member of said association, but did not know whether he got his stock before or after 1887, and did not know when Atkins became a member of the association. Under instructions of the court, the jury rendered a verdict for plaintiff, according to the allegations of the complaint, upon which the following judgment was rendered: "It is adjudged that plaintiff recover of the defendants J. M. Crumpler, O. W. Owens, J. R. Owens, T. J. Owens, and W. R. Owens $1,213.85, with 8 per cent. interest from January 9, 1889, subject to credits of $15, March 14, 1892, and $20, March 1, 1893, until paid; and that he recover of said defendants and of the defendants W. W. Hobbs and wife, T. Fisher and wife, Martha M. Owens, Mary N. Owens, Virginia C. Crumpler, Julia J. Crumpler, and Lola M. Owens, the costs of this action. It is further adjudged that J. S. Bizzell, heretofore appointed receiver in this action, report the proceeds of the rents and profits of the land described in the complaint; and that the land described in the pleadings and mortgages in the case known as the 'Irvin Owens Land' be condemned to be sold to pay the judgment herein recorded for the plaintiff; and Henry E. Faison is now appointed commissioner to make such sale. Defendants are allowed ninety days within which to pay said judgment and costs, and, if the same is not paid within that time, the said commissioner is ordered to make sale by public auction at the courthouse door in Clinton, for cash, after advertisement according to law, and report his proceeding to court; and the plaintiff is allowed to become the purchaser at said sale, or bid for the land; and that this cause be retained. [Signed] A. W. Graham, Judge." Defendants excepted to the issue above submitted to the jury, and appealed from the judgment rendered upon the verdict.

Plaintiff claimed to have bought land inherited by defendants from their father, at a sale under a power contained in a mortgage executed by some of the heirs. Afterwards a bond was executed by some of the heirs, by which they agreed to surrender possession of the property in default of payment of a specified sum within a certain time. In an action to foreclose such instrument, defendants claimed fraud; that plaintiff had received the proceeds of the mortgage under which the land was sold; and that they were never indebted to him except on a prior note, which was usurious, and had been fully paid. Held, that the court erred in refusing to admit evidence of such defense.

J. D. Kerr, for appellants.

Allen & Dortch and H. E. Faison, for appellee.

FURCHES J.

Defendants are the heirs of Irvin Owens, who died some time before 1873 and the lands in controversy descended to them as his heirs at law. After the death of their father, Irvin Owens, and in May, 1873, a part of the defendants executed their note and a mortgage on the land to one T. M. Lee, to secure a debt the said Owens owed to said Lee, before Owens' death. After this, T. M. Lee died, and the debt and mortgage, by some means, got into the hands of T. J. Lee; and some time afterwards, and, as it appears, about the last of January, 1882, the plaintiff, as he alleges, became the purchaser of the land at a sale made by T. J. Lee, under a power contained in the deed to his father, and, as defe...