Blake v. Broughton

• Decision Date: 06 November 1890
• Citation: 12 S.E. 127,107 N.C. 220
• Parties: BLAKE et al. v. BROUGHTON et al.
• Court: North Carolina Supreme Court

12 S.E. 127

107 N.C. 220

BLAKE et al. v. BROUGHTON et al.

Supreme Court of North Carolina

November 6, 1890

This was a civil action brought to foreclose two mortgages, set out in the complaint, tried before MACRAE, J., at the February term, 1890, of the superior court of Wake county.

The record, with the evidence sent therewith, is voluminous, but we reproduce only so much thereof as is necessary to a full and clear understanding of the questions presented for our consideration. The allegations of the complaint, so far as material to this appeal, are in substance, that on the 15th day of May, 1884, D. H. Crawford, and M. A. Crawford, his wife, executed a mortgage on certain real estate therein mentioned to John Watson, guardian, etc., to secure the payment of a bond executed on the same day for $270; that on the 8th day of August, 1885, the said Crawford and wife executed a mortgage to B. F. Montague on certain real estate mentioned therein, to secure the payment of a bond of $53.90 executed to the said Montague on the same day; that, on the ___ day of ___, the said Watson, guardian, etc., by indorsement, transferred the bond made to him to B. F Montague, for value, without recourse; that on the 2d day of March, 1886, the said Montague, by indosement, transferred both the said bond indorsed to him by the said Watson and the bond made by Crawford and wife to himself to the plaintiff and that neither of said bonds have been paid; that on the 19th day of June, 1886, the said Crawford and wife sold and conveyed their interest in the land and premises contained in both of said mortgages to the defendant Flora Ann Wicker, who thereafter sold and conveyed the same to the defendants J. M Broughton and W. N. Jones; that the said Broughton and Jones are in the possession of the said lands and premises collecting and appropriating the rents and profits to their own use; that the said Broughton is insolvent, and the said Jones is a man of small means, and they ask for the appointment of a receiver, etc., and that the said premises be sold, etc. The defendants Broughton and Jones filed answers, but without bond, as required, and for want of answers there was a judgment by default against the defendants other than Flora Wicker. The defendant Flora Wicker answered denying so much of the complaint as alleges that there were incumbrances (other than for state, county, and city taxes mentioned) on said property at the time she sold and conveyed to the defendants Broughton and Jones, and she averred that said debts and incumbrances set out, as claimed by the plaintiff, were fully paid off and satisfied by one W. N. Andrews before his death, and that the sale and conveyance made by her to the said Broughton and Jones was in fee-simple, and free and discharged from any incumbrances, except the taxes mentioned, and she asks judgment that the incumbrances set up by the plaintiff in his complaint be surrendered for cancellation, and for such other relief, etc.

At the February term, 1890, the following issues were submitted by consent: "(1) Have the mortgages described in the complaint or any part thereof been satisfied? (2) What amount, if any, is now due?" There was evidence tending to show that the bonds had been discharged; that the plaintiff purchased of W. N. Andrews certain property mentioned in the pleadings at the price of $1,750; that Andrews purchased for the defendant Flora Wicker the property in controversy, subject to the two mortgages, and that it was the agreement that the plaintiff Blake should pay off and discharge the mortgages out of the purchase money of the property sold to him by Andrews, and that he did pay off and discharge the same at and in accordance with the request of said Andrews; that afterwards the said Blake loaned money to Andrews, and held the uncanceled bonds and mortgages as a security therefor. There was evidence tending to controvert this, and to show that the mortgage debts had not been paid off and discharged. It was admitted that the mortgages were never marked "Satisfied" on the register's books. B. F. Montague testified for the plaintiff "These notes were indorsed by me in my handwriting. I have no recollection about it except that Andrews settled. These figures ($367.03) are mine. I suppose they represent the calculation of what is due. I was slightly acquainted with Mr. Andrews. The credit of $21.60 indorsed is in Watson's handwriting." Cross-examination: "I remember Mr. Jones coming to my office, but don't recollect the time. I had some conversation with him about this matter. He asked me if I had my money. I told him I had. He asked me would I cancel the mortgage; that he had found it was unsatisfied. I told him I did not know that I would have any objection to cancel them. Some time afterwards, perhaps the same day, I saw Mr. Devereux, and he showed me this indorsement, which I had forgotten, then I declined to cancel." The testimony of this witness, as to his conversation with defendant Jones, is objected to by plaintiff. Objection overruled, and plaintiff excepted. (First exception.) The presiding judge told the jury that this testimony as to what Mr. Montague said could not bind the parties plaintiff, as it was not said in their presence; that it was only admitted on cross-examination as affecting the credibility or accuracy of the witness. Witness Montague further stated on cross-examination: "I don't recollect stating to Mr. Jones that these mortgages were paid, and I would cancel them. I think Jones said he had purchased." The same objection and exception as before is made by plaintiff. Testimony admitted, with the same explanation to the jury. (Second exception.) Witness further testified: "I don't recollect that Crawford assented or dissented to the transfer of these mortgages. I have many transactions, and don't recollect much about this one." The plaintiff closes. Defendants resume. D. H. Crawford testified that he was the mortgagor in the two mortgages; that he never assented to the transfer of the notes to W. R. Blake; that he did not know anything about it. (Plaintiff objects to the testimony. Objection overruled, and plaintiff excepts. Third exception.) Witness thinks that Mr. Jones came to him, and asked him about these notes, and witness told him he thought they were all settled. Witness did not know anything about it. When witness executed the deed to Flora Wicker, Mr. Montague told witness that the papers were all settled. To all this testimony plaintiff objects. Objection overruled, plaintiff excepts. (Fourth exception.) The presiding judge told the jury as to this testimony that Mr. Crawford's assent to the transfer of the notes was not necessary, as he had parted with his interest in the property. Cross-Examined. Mr. Montague told witness he had his money and the papers were all fixed. The land belonged to witness' wife. Witness had sold his interest in it. The taxes were due on it when witness sold,--$120, more or less. When Andrews bought the property he understood the taxes were not paid. Witness sold the property to Andrews and wife, and made the deed to Flora Wicker by Andrews' direction. Redirect. Witness signed these notes. Witness has children by his wife. Defendant closes. Plaintiff recalls Mr. Montague, who testifies: Witness does not recollect any conversation with Crawford. Knows he was there. Witness could not have told him the mortgages were settled, because the transfer was fresh in witness' mind. He did not object to the transfer of the notes; he was right there. Cross-Examined. Blake was not there. Andrews, Crawford and witness were all that were present. Defendant offered a deed, W. N. Andrews and others to W. R. Blake, for the Cabarrus street property. Plaintiff objects. Objection overruled, plaintiff excepts. (Fifth exception.) Also defendant offered a deed, Crawford and wife to Flora Wicker. Plaintiff closes. The presiding judge instructed the jury in response to defendants' prayers: (1) "If Blake, for a valuable consideration, contracted with Andrews to pay the mortgages set out in the complaint, and in pursuance of said contract paid the mortgages and had them assigned to him, such assignment of the mortgages, or the debts therein described, would operate as a discharge, and the plaintiff would not be entitled to recover." Plaintiff excepted. (Sixth exception.) (2) "If the plaintiff Blake, at the time the mortgages were assigned to him, had in hand money belonging to W. N. Andrews, which he had agreed to apply to the mortgages and in pursuance of such agreement he paid the mortgages, and they were...