Beck v. Zimmerman

• Decision Date: 30 June 1876
• Citation: 75 N.C. 60
• Parties: V. L. BECK, Trustee, v. N. R. ZIMMERMAN and CATHARINE ZIMMERMAN.
• Court: North Carolina Supreme Court

75 N.C. 60

V. L. BECK, Trustee,

v.N. R. ZIMMERMAN and CATHARINE ZIMMERMAN.

Supreme Court of North Carolina.

June Term, 1876.

The purchaser of a house, with notice that the same is subject to a deed of trust, and who removes said house from the premises upon which it is located, is liable in damages to the trustee.

The measure of damages in such case, is the value of the house standing on the premises, the subject of the trust.

CIVIL ACTION tried before EURE, J., at February Term, 1876, of WASHINGTON Superior Court.

The action was brought to recover a balance alleged to be due upon a bond, secured by a deed in trust upon certain real property, executed by B. D. Bunnell to the plaintiff and to subject a store house, a part of the property conveyed by the deed in trust, which had been removed from the premises to the payment of said balance.

In 1872, F. D. Bunnell purchased of the plaintiff and Sarah Laverty, a lot in Elizabeth City upon which there was a store house. A part of the purchase money was paid in cash, and for the residue, amounting to $594.00, Bunnell executed his bond, secured by deed of trust upon the store-house and lot. The deed was registered on the 10th day of April, 1872, and the plaintiff was named trustee therein. The store-house constituted one-half the value of the property conveyed by the deed of trust. The land without the house was insufficient to pay the debt secured, but the land and the house together were sufficient. After the registration of the deed to the plaintiff, Bunnell went into possession of the property, and on April 26th, 1873, by parol agreement, sold the house to the defendant N. R. Zimmerman, who had notice of the deed of trust to the plaintiff, and who was expressly notified by the plaintiff's attorney that the trust was upon the house and lot, and that the debt had not been paid.

There was no written instrument conveying the house from Bunnell to N. R. Zimmerman, nor the defendant Catherine E. Zimmerman, his wife.

On the -- day of April, 1875, the plaintiff, by her attorney, sold the lot conveyed in the deed of trust at public auction, when the defendant, C. Zimmerman, became the purchaser for the sum of $364.00, and a deed was made to her for said lot. Prior to said sale the plaintiff's attorney demanded of both the defendants that the store-house which had been removed under the pretended sale by Bunnell, and put upon C. Zimmerman's lot, should be replaced or its value ascertained and applied as a credit on the note secured by the deed in trust. The proceeds of the sale of said lot were not sufficient by $361.00 to pay off the debt and interest. At the time of the sale it was announced that only the land was being sold, and that the sale did not embrace the claim or interest of the plaintiff in the store-house.

The bond given by Bunnell to the plaintiff had upon it her endorsement in blank, and was so endorsed before the land was sold and before the commencement of the action.

It was in evidence that the note had been given to W. F. Martin, an attorney, for collection; that the plaintiff owned one-half the note and a niece of the plaintiff the other half.

The defendant's counsel insisted that the action could not be maintained in the name of the plaintiff, as her legal title passed by the endorsement.

The

counsel for the plaintiff insisted that the plaintiff was a trustee of an express trust, and in that capacity had a right to sue without reference to her interest in the note.

His Honor, without deciding the point, remarked that he supposed the object of all parties was to settle the controversy in one suit, and that he would direct the record to be amended by making ____ Smith, the niece of the plaintiff, a party plaintiff. The defendants excepted.

The following issues were submitted to the jury:

1. What was the value of town lot in April, 1875?

2. What was the value of the house removed from the lot?

Counsel for the defendant requested the Court to charge the jury:

1. That if a mortgagor in possession of land, sells a house from the same to a third party and the same is removed from the land the mortgagee cannot follow said house, in the hands of the purchaser, nor in the hands of the party to whom the purchaser may sell the same; nor can he maintain an action against either of them to recover the value of said house.

This...