Barnes v. Brown

• Decision Date: 30 June 1874
• Citation: 71 N.C. 507
• Court: North Carolina Supreme Court
• Parties: WILLIS P. BARNES and others v. W. J. BROWN and wife and others.

71 N.C. 507

WILLIS P. BARNES and others

v.W. J. BROWN and wife and others.

Supreme Court of North Carolina.

June Term, 1874.

When an issue is made up in this Court and sent down to the Superior Court for trial, if on the second trial, in the opinion of the presiding Judge, such issue is too particular and special to meet the merits of the case, he has the power to alter and change the same, so as to embrace all the matters in controversy.

A mortgagor has the right to release his equity of redemption to the mortgagee, though the Courts look with suspicion on such release, and require proof that the same is free from fraud and for a fair and adequate price. In the case of an assignment of his right of redemption to a stranger, there is no such jealousy, and if the mortgagor would avoid his assignment, he must prove fraud as in other cases.

A mortgagee may purchase the equity of redemption from any person to whom the mortgagor has assigned it, or at an execution sale had at the instance of such stranger.

When a vendee, upon a parol contract to convey lands, which the vendor afterwards refuses to perform, has made payments of the purchase money, or being put into possession has expended money in improvements, he is entitled to be reimbursed.

This was a CIVIL ACTION to compel defendants to convey to plaintiffs the legal title to two lots in Lumberton, originally tried by Buxton, J., at the Special (January) Term, 1874, of the Superior Court of ROBESON, and from thence brought by appeal to this Court, in which it was argued at June Term, 1873, and sent back to the Court below to have tried certain issues framed here. The cause having been removed to the Superior Court of Columbus, upon the affidavit of the plaintiff, where it was tried before Russell, J., at Spring Term, 1874, upon the issues sent down from this Court.

The facts of the case as sent up with the record, are the same as those set out in the statement of the case in 59 N. C. Rep., 439; and the evidence relating to the issues on the last trial, and all the facts pertinent thereto are set out in the opinion of Justice RODMAN.

N. McLean and W. McL. McKay, for plaintiffs .

Strange, Leitch, French and N. A. McLean, for defendants .

RODMAN, J.

1. The defendants insist that they are entitled to a new trial of the issues upon which the jury passed at the last trial, because during the trial the Judge altered the issue directed by this Court to be submitted, and submitted others more general, which they had not come prepared to try. The issue which this Court at June Term, 1873, directed to be tried, (69 N. C. Rep., 439,) seemed, upon the case then before us, to embrace all the matters in controversy between the parties which had not been determined by the finding of a jury. As it appeared upon the second trial, it was too special and particular to meet the merit of the case. We think the Judge had the power to change its form, so as to make it more general, or to add other issues more general to meet the merits. Of course it was immaterial whether King had been paid through the hands of Mr. Barnes. The material question was; had he been paid? The defendants have no reason to complain that the Judge required them to try at the term at which the form of the issues was modified. Issues are made by the pleadings, or out of the pleadings. Those questions only should be put to a jury which are in issue and which are material, and those, the parties should in general be at all times prepared to try. No form of issue which presents only such questions, can be considered a surprise. The defendants are not entitled to a new trial on that ground.

2. In order to get at the merits of this case, it is necessary to examine the complaint which was filed at Spring Term, 1872. The case there set forth is in substance this: On the 13th December, 1853, Hardy Barnes, the father of plaintiffs, conveyed to King two lots in Lumberton by way of mortgage to secure a debt of $800, which he owed to King. On 27th December, 1853, Barnes conveyed to French, the same lots and another piece of land, in trust to sell and pay certain other debts; French duly sold both the lots and the land, and King purchased the whole at public sale for $1,995, and French conveyed to him accordingly. It is material to inquire what was the nature of King's estate in the two lots, after his puchase of the equity of redemption, which was the only right that French had, or could assign. The learned counsel for the plaintiffs contends that as King was a mortgagee, he could not under any circumstances, purchase the equity of redemption, so as to hold the land freed from the mortgagor's right to redeem. The relation of mortgagor and mortgagee he says can only be changed by a foreclosure, or by a payment of the debt. This proposition is evidently too broad, as it excludes any right on the part of the mortgagor to release his right of redemption to the mortgagee, or to assign it to a stranger. These rights he undoubtedly has. It is true, that a Court looks with suspicion, on any release to the mortgagee, upon the idea that he has a certain power over the mortgagor, which he may abuse, and it requires proof that the release was free from fraud, and for an adequate price. But in the case of an assignment to a stranger there is no such jealousy, and if the mortgagor would avoid his assignment, he must prove fraud, as he would in a case of other property. In the present case, the assignment to French is not impeached. If a stranger had purchased of French he would have acquired the right of redemption; that is to say, an absolute estate in the land on paying off the mortgage debt. In the absence of fraud, and of any valid agreement to the contrary, King must have acquired precisely the same right;...