Boyer v. Jarrell

• Citation: 105 S.E. 9,180 N.C. 479
• Decision Date: 01 December 1920
• Docket Number: 445.
• Parties: BOYER v. JARRELL.
• Court: United States State Supreme Court of North Carolina

105 S.E. 9

180 N.C. 479

BOYER v. JARRELL.

No. 445.

Supreme Court of North Carolina

December 1, 1920

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

Action by M. E. Boyer against W. G. Jarrell. From judgment for plaintiff, defendant appeals. Affirmed.

A finding by the trial court will not be disturbed by the court on appeal, when there is any evidence to support it, or the evidence tends to support it.

This is an action to recover the balance due on certain promissory notes. The defendant filed answer, admitting the execution of the notes, but alleging that certain property of defendant embraced in a deed of trust, securing said notes, had been sold under the deed of trust and bought by plaintiff at a grossly inadequate price, and asking therefore that the sale to plaintiff by the trustee be set aside and the property be resold. The plaintiff admitted that he had purchased the property at the trustee's sale, but denied that the property was sold for a consideration so grossly inadequate as to avoid the sale. The case was referred to referees, who filed a report, finding that there had been a complete settlement between plaintiff and defendant, and made certain other findings to be considered by the court if the findings as to a settlement should be set aside, The plaintiff thereupon filed exceptions to the report of the referees which came on for hearing before Judge Lane. The defendant came in and admitted that the finding of a settlement by the referees was erroneous, and consenting that the exceptions to that be sustained; and Judge Lane, after hearing the evidence and argument of counsel, sustained other exceptions of plaintiff and found the facts. The referee permitted the defendant to file an amendment, alleging that the sale was not properly advertised, which was stricken out by the judge presiding.

The following judgment, containing the findings of the judge, was rendered:

"This cause coming on to be heard upon the report of the referees and the exceptions filed thereto by the plaintiff, and being heard, and the court having duly considered the evidence produced in the cause, the argument of the counsel and the report of the referees and the exceptions, the court sustains the exceptions of the plaintiff numbered 1 to 14, inclusive, and from the evidence in the case the court finds the following facts:

(1) That on the 29th day of October, 1913, the defendant executed to the plaintiff his four several promissory notes aggregating $6,527.50, all bearing interest from date payable annually, one for $881.88, maturing October 29, 1914, one for $1,881.87, maturing October 29, 1915, and one for $1,881.87, maturing October 29, 1916, and one for $1,881.87, maturing October 29, 1917; and that at the same time defendant, to secure said notes, executed to C. W. Tillett, Jr., trustee, a deed of trust, conveying to him a house and lot on East Seventh street, said deed of trust providing that upon failure to pay any of said notes at maturity, or any part of the interest on any of said notes when due, then all of the said notes should immediately become due and payable, and upon request of the holder of any of said notes the said trustee should sell the said property at public auction at the courthouse door of Mecklenburg county, after advertising said sale for 30 days at the courthouse door and three other public places in Mecklenburg county, or in a newspaper published in said county, said deed of trust being Exhibit C, having been recorded in the office of the register of deeds of said county, in book 323, p. 602.

(2) That the defendant did not pay said notes as they became due, and did not pay the interest on same according to the terms thereof, and on said January 1, 1916, had paid only $102.91 on said notes.

(3) That on January 24, 1916, plaintiff entered into a written agreement with defendant (Exhibit E) that if the defendant would pay him $35 per month to be credited on said notes he would not press him for payment until January, 1917, in order to enable defendant to make private sale of said property, if possible; that plaintiff waited on defendant until January, 1917, and longer, but defendant did not sell said property or pay said notes or the interest due thereon, but between January 24, 1916, and June 2, 1917, did pay the plaintiff the sum of $595.

(4) That on June 14, 1917, there was due on said notes all the principal sum of $6,527.50 and $905.86 interest over and above all payments which had been made on said notes; and on said date the plaintiff requested the said trustee to sell the property embraced in said deed of trust under the terms thereof.

(5) That on July 16, 1917, the trustee, after advertising the property embraced in said deed of trust according to terms thereof, and after notifying defendant twice, sold same at public auction to plaintiff for the price of $2,500, which sum was credited on the notes, and said trustee executed to plaintiff a deed for said property which is marked Exhibit D.

(6) That the trustee caused a proper notice of sale, setting forth and describing the property to be sold and the time and place of sale, to be posted at the courthouse door and three other public places in Mecklenburg...