Barnes v. Brown

• Decision Date: 30 June 1873
• Citation: 69 N.C. 439
• Court: North Carolina Supreme Court
• Parties: WILLIS P. BARNES and others v. W. J. BROWN, and wife and others.

69 N.C. 439

WILLIS P. BARNES and others

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

Supreme Court of North Carolina.

June Term, 1873.

Where, by the finding of a jury, it is left an open question, whether a certain debt secured by a mortgage, has not been in part paid, the mortgagor, or those representing him, have the right to have the fact of such payment and its proper application at the time made, found by the jury; and for that purpose, the case will be remanded from this Court, and the issue made up and responded to by a jury in the Court below.

CIVIL ACTION tried at the January (special) Term of the Superior Court of the county of ROBESON, before his Honor, Buxton, J.

The plaintiffs, who are children and heirs-at-law of Hardy Barnes, deceased, brought this action against the defendants, the children and heirs-at-law of Reuben King, deceased, to Fall Term, 1871, to compel the said defendants to convey to them the legal title to two lots, Nos. 95 and 96, in the town of Lumberton, of which the plaintiffs alleged they owned the equity of redemption. The plaintiffs likewise sought to recover rents and profits.

The fact as disclosed by the record are, Hardy Brown, the ancestor of plaintiffs, and owner of the lots, the 13th December, 1853, conveyed the same to Reuben King, the ancestor of the defendants, by mortgage, to recover the sum of $850, which he owed King. Brown being further indebted to others, on the 27th of December, 1853, a few days after the mortgage, executed a deed in trust to the Hon. R. S. French, trustee, for the purpose of securing the payment of certain debts therein described, and which conveyed to the trustee for that purpose, the two lots, Nos. 95 and 96, before spoken of, and 350 acres of land besides. In this deed of trust, the trustee was directed to sell the property conveyed, if the debts secured thereby was not paid before the 1st June, 1854. The debts not being paid by the the time limited, the trustee, as directed, on the 13th September, 1854, sold the property, and King, before mentioned, became the purchaser of all of it, to-wit: the lots, Nos. 95 and 96, at $1,000, and the 350 acres of land at $995, making the aggregate of $1,995, which sum King paid to the trustee, who applied it in payment of the debts directed by the trust. French, the trustee, on the 13th September, 1854, executed to King, the purchaser, a deed in fee simple for the said lots and lands. This deed was not proved nor registered until 8th May, 1869, sometime after the death of King.

On the 28th January, 1869, King and wife made a need in fee simple to W. H. Barnes, a son of Hardy, and one of the plaintiffs for the 350 acres of land, in consideration of $400, of which sum, at the date of the deed, $200 was due. And during his last illness, King made a will, in which he devised the lots to his married daughter, Amanda, wife of J. W. Brown, both defendants.

The plaintiffs allege, that while the deed from the trustee, French, to King, was absolute on its face, yet there was an understanding and parol agreement between Barnes and King, whereby, as soon as Barnes should pay the mortgage debt of $800, and the $1,995, paid to the trustee, King would reconvey all the property, lots and land to him. That those sums were paid to King in the lifetime of Barnes. The plaintiffs insist that inasmuch as King retained the title to the lots, Nos. 94 and 96, up to the time of his death, that they, as heirs-at-law of Barnes, are now entitled to a reconveyance from the heirs-at-law of King, or from his devisees, the defendants, W. J. Brown and wife, Amanda, and also to an account for rents and profits for use, &c.

In support of the allegation of their complaint, the plaintiffs called Mary, the widow of Hardy Brown, their ancestor, and also one of the plaintiffs of record, as guardian of D. W. Barnes, a minor child of the said Hardy. She testified that between the years 1856 and 1858, she made two payments to King for her husband, one of $300 and another of $600. She expected the payments were made on the mortgage debt. It was then proposed on the part of the plaintiffs to prove by her the declarations of King in regard to the matter. Objected to by defendant, because, being a party and having a right of dower, King being dead, the testimony was excluded by section 343, C. C. P., page 129. His Honor sustained the objection, holding that the witness could speak of the payments and of what occurred at the time they were made, as a part of the res gestæ, but of no other conversation with King. Plaintiff showed a release from the witness of all her right of dower, and any and all her interest in the recovery. His Honor still held the testimony, incompetent and the plaintiffs again excepted.

The defendants denied the allegations in the plaintiffs' complaint, and insisted that the lots, Nos. 95 and 96...