Bruner v. Threadgill

• Decision Date: 28 February 1883
• Citation: 88 N.C. 361
• Parties: SUSAN BRUNER and others v. S. H. THREADGILL, Adm'r, and others.
• Court: North Carolina Supreme Court

88 N.C. 361

SUSAN BRUNER and others

v.S. H. THREADGILL, Adm'r, and others.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1882, of ANSON Superior Court, before Gilmer, J.

Jacob Bruner, being indebted in three several notes given to George W. Willoughby for the purchase of a lot in the town of Wadesboro, described in the complaint and the subject of the present controversy, on March 19th, 1859, in order to secure the same, conveyed said lot by deed of mortgage to said Willoughby with a power of sale to be exercised in default of payment after a day intended to be fixed in a blank left for that purpose, but not filled up before execution and registration.

On the 21st day of May, 1866, under the advice of counsel that the omission to designate the time could not prevent a decree of foreclosure and sale on application to the court of equity, the mortgagor executed under seal a written instrument wherein it is recited that it was the intention of the parties to insert in the blank, as the day of default after which the land might be sold, the 1st day of January, 1861, and it should have been so specified. This writing, witnessed by counsel, was proved and admitted to registration on November 16th, 1882. The mortgagor was, at the time of his assent to the sale, in great mental and bodily distress, suffering from a malady of which he soon afterwards died.

On December 1st, 1866, after due advertisement, the lot was offered at public sale and bid off at the price of $625 by one William H. Redfern (who acted as the auctioneer) for the mortgagee, under a previous arrangement that he should do so, made between them. The lot was then conveyed by said Willoughby to Redfern and by the latter reconveyed to the former on December 6th, 1866, for the recited consideration of $650, though no money was paid or received by either in carrying out their previous understanding and agreement.

Under the mortgage deed the mortgagor was to remain in occupation of the premises, as did he and his family, until the sale and up to January 1st, 1867, when Willoughby took and has held possession ever since, using it as his own. At this date the plaintiffs, the children and issue of deceased children of the said Bruner, then living, the heirs-at-law upon whom by their father's death and intestacy his equity of redemption descended, were all but one under the age of 21 years, their respective ages ranging from 22 to 6 years.

This action, commenced on March 28th, 1878, against the mortgagee, and upon his death revived against the defendants, his administrator, widow and only heir-at-law and the husband of the latter, has for its object a judgment annulling the deeds by which the mortgagee claims to have acquired an absolute estate, declaring the mortgage deed still in force, and the defendants to hold the lot on the trusts therein declared, and for all proper accounts to be taken in order to ascertain what is due under the mortgage and for leave to redeem.

The jury find upon issues submitted to them, in addition to the facts already stated, that the lot when sold was worth $1,500, that the mortgagor gave his assent to the mortgagee's making the sale, as if the date of default had been specified as of January 1st, 1861, and that there has been no abandonment of the right to redeem by the plaintiffs.

Thereupon the court adjudged that the defendants held the lot, notwithstanding the transmission of the legal title through the impeached deeds upon the trusts of the original mortgage; and, to ascertain the relations of the parties to each other, ordered a reference to the clerk to take and state an account of,

1. The amount due on the secured debts;

2. The rents and profits that were or ought to have been received by the mortgagee in his life-time, and by the defendants who have continued the occupancy of the lot since, as well as the deductions to be made for taxes and other expenditures paid in the protection of the property, and

3. The value of permanent improvements made during their possession, and to make report thereof at the next term.

From this judgment the defendants appealed.

Messrs. J. A. Lockhart, J. D. Shaw and Hinsdale & Devereux, for plaintiffs .

Messrs. Burwell & Walker, for defendants .

SMITH, C. J., after stating the facts.

With this summary recapitulation of facts, we proceed to consider the successive rulings to which are taken the exceptions presented in the record.

1. The subscribing witness to the instrument, executed to supply the omission in the mortgage introduced to prove the execution, was permitted after objection to testify to the mental and physical condition of the mortgagor at the time. The objection is not pointed nor specific, but we understand it to be upon the ground of the tendency of the evidence to impeach the validity of the instrument or impair its force, as an assent to the sale by the mortgagee.

We do not see any sufficient reason for opposing the admission of the testimony, as directly bearing upon the inquiry whether the mortgagor in his life-time gave consent to the sale; but if there were, it has been rendered harmless and the objection to its introduction removed by the affirmative finding of the jury on that issue.

2. There were different estimates of the value of the lot, at the time of the mortgage sale, given by witnesses; and a witness examined by defendant was asked to state how a lot on the opposite side of the street, specified, compared in value with this in dispute, and at what price it was sold in October, 1868. This question, on plaintiffs' objection, was disallowed.

The estimate of persons called on to testify as to the value of land is derived from actual sales of similar property at the place or in the vicinity; from the opinions of competent persons acquainted with such property, and from the personal...