Barden v. Stickney

• Decision Date: 04 March 1902
• Citation: 130 N.C. 62,40 S.E. 842
• Court: North Carolina Supreme Court
• Parties: BARDEN v. STICKNEY.

40 S.E. 842

130 N.C. 62

BARDEN

v.STICKNEY.

Supreme Court of North Carolina.

March 4, 1902.

APPEAL—ENTRY of RECORD—NOTICE—mortGAGES—SALE—TITLE—IMPLIED WARRANTY.

1. That an appeal was not entered of record as required was not material, where the fact of the appeal having been taken was not denied, and notice had been served.

2. Where a foreclosure sale of land mortgaged by a woman to secure her husband's debts passed no title because the surety had been released by reason of an extension of time granted to the husband, the purchaser could not maintain an action against the mortgagee on allegations that his acts in advertising the land, making sale, and receiving the purchase price were an implied warranty.

Appeal from superior court, Washington county; Neal, Judge.

Action by Maggie S. Barden against J. B. Stickney to recover the value of property purchased by plaintiff under a mortgage sale by defendant conferring no title. From a judgment for plaintiff, defendant appeals. Action dismissed.

H. G. Connor & Son and H. S. Ward, for appellant.

A. O. Gaylord, for appellee.

CLARK, J. This case was submitted to the judge upon a case agreed, and by consent he was to render his judgment out of term, and the losing party should have 10 days thereafter in which to appeal, and notice of appeal was waived. Upon receipt of notice of the judgment, and two days before the judgment was filed in the clerk's office, the appellant gave written notice of appeal, service of which was accepted by the appellee, as appears from the transcript of such notice and acceptance in the record. The appellant filed a justified appeal bond, and has in all other respects perfected his appeal and set up a complete transcript. The appellee moves to dismiss the appeal because entry thereof does not appear to have been entered on the record by the clerk. The requirement that the appeal should be entered on the record is to furnish indisputable proof of the fact, and is immaterial when the fact of the appeal having been taken is not denied, and notice of appeal has in fact been served in time or waived. In Simmons v. Allison, 119 N. C, at page 503, 26 S. E. 171, it is said: "If the notice of appeal is admitted or shown to have been given in time, it would avail nothing that the entry was not made at all, for it is only made as record proof. Fore v. Railroad Co., 101 N. C. 526, 8 S. E. 335; Atkinson v. Railway Co., 113 N. C. 581, 18 S. E. 254." In the last-cited case, it is said at page 588, 113 N. C, and page 256, 18 S. E.: "Strictly and properly the record should show...