Bunn v. Braswell
| Decision Date | 26 September 1905 |
| Citation | 51 S.E. 927,139 N.C. 135 |
| Parties | BUNN v. BRASWELL et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Nash County; W. R. Allen, Judge.
Action by one Bunn against one Braswell and others, consolidated with a proceeding by motion of plaintiff for an execution on a prior judgment. Judgments for plaintiff in the action and on the motion, and defendants appeal. Reversed.
A consent judgment declared that defendant has an equity to redeem land on the payment to plaintiff of a specified sum and, in case of the failure to pay the same within the time limited, "defendant shall stand debarred" absolutely of all equity in the premises. Held, that the words "defendant shall stand absolutely debarred" of all equity in the land do not amount to a strict foreclosure, and defendant has the right to redeem.
At the October term, 1888, of the superior court of Nash county N.W. Boddie recovered judgment by default against Exum Braswell, adjudging him to be the owner and entitled to the possession of the tract of land in controversy. At the spring term, 1889, upon a motion to set the judgment aside, it was by consent adjudged Exum Braswell remained in possession until his death, when the defendant, who succeeded to such possession and rights as he had, continued therein until the institution of the action and other proceedings set forth in the transcript. Upon the death of N.W. Boddie, his rights in respect to said land vested in the plaintiff. On the 14th day of April, 1900, a civil action was instituted in the superior court, by Mrs. L. C. Boddie, who then represented the title of N.W. Boddie, deceased, against Exum Braswell. In the complaint filed therein the plaintiff avers ownership in herself, and wrongful possession by defendant. At the spring term, 1900, judgment by default was entered. At the spring term, 1901, the heirs at law of Braswell were permitted to come in and make themselves parties defendant, the judgment was set aside, and defendants allowed to file answer. They answered, averring that the judgment of spring term, 1889, in the original action, was a final settlement of the rights of the parties, and that the terms thereof were complied with by Exum Braswell, by paying the sum therein adjudged to be due N.W. Boddie. They also pleaded the 10-year statute as a bar to the action. On the 29th day of November, 1901, upon application of the plaintiff, the clerk of the superior court of said county made an order directing that a writ of assistance issue upon the judgment of spring term, 1889. Pursuant thereto such writ was issued to the sheriff of said county, commanding him to eject the defendants from said land and put the plaintiffs in possession thereof. The defendants thereupon made a motion before the said clerk to withdraw said writ, for that more than 10 years had elapsed since the rendition of said judgment, that no execution had issued thereon, that no notice had been given of the motion for the issuance of said writ, and that the judgment was barred by the statute of limitations. The plaintiffs, respondents to said motion, filed answer to the affidavit upon which the motion was made, admitting the matters of record and denying that the possession of the defendants or their ancestor was or had been adverse to the plaintiffs. The said answer set forth "that the relation established by the judgment [of spring term, 1889] between the plaintiff and defendant was that of mortgagor and mortgagee, with the mortgagor in possession and clothed with the right to redeem under said decree of strict foreclosure," and that the heirs of Exum Braswell took subject to the rights of N.W. Boddie. The clerk withdrew the writ, and plaintiffs appealed to the judge. The original action and appeal coming on for hearing by consent, the two records were consolidated and heard at the May term of Nash superior court, where judgment was rendered for plaintiffs, to which defendants excepted and appealed. No evidence of payment of the $600 was introduced.
Austin & Grantham, for appellants.
F. S. Spruill, for appellee.
CONNOR J. (after stating the facts).
There is nothing in the complaint filed in the action of fall term, 1888, to indicate the source or quality of the title of N.W. Boddie. The judgment of spring term, 1889, being by consent, is to be construed as any other contract of the parties. It constitutes the terms of an agreement of the parties, made a matter of record by the court at their request. Gaston, J., in Wilcox v. Wilcox, 36 N.C. 36, says that a consent judgment "is the decree of the parties." Dillard, J., in Edney v. Edney, 81 N.C. 1, says: "A decree by consent is the decree of the parties put on file with the sanction and permission of the court, and in such decrees the parties, acting for themselves, may provide as to them seems best concerning the subject-matter of the litigation." Vaughan v. Gooch, 92 N.C. 524. The judgment is therefore to be construed in the same way as if the parties had entered into the contract by writing duly signed and delivered.
The plaintiff, in her answer to the motion to withdraw the execution, contended that the relation established between the parties by the judgment was that of mortgagor and mortgagee; the defendant being the mortgagor in possession. The defendants in this court make the same contention, while the plaintiff here insists that the judgment established the relation of vendor and vendee; the vendee being in possession. The learned counsel calls our attention to the provision that the plaintiff is declared to be the owner of the land, and, upon payment of the amount fixed, is directed to convey it to the defendant. This, he insists, excludes the idea that the defendant was the owner, and the plaintiff the mortgagor. There is certainly much force in this view. On the other hand, the defendant's counsel, in their well-considered brief and excellent oral argument, contend that the declaration that the defendant "has an equity to redeem the land" shows clearly that the relation of mortgagor and mortgagee, at that time and theretofore, existed between the parties, and not that he was by the judgment given such equity; that the judgment was a recognition of the existence thereof. They further insist that the term "equity to redeem" is well defined and applicable to no other relation than that of mortgagor and mortgagee. From this position counsel contend that, notwithstanding the provision in the judgment that, upon failure to pay the amount fixed by October 1, 1889, the defendant shall be forever debarred and foreclosed of any equity, etc., in said lands, the relation continued to exist, and that after default the possession of the defendant continued to be that of mortgagor and not tenant, and that at the end of 10 years the plaintiff was barred by subsection 3, § 152, of the Code. This defense is not based upon the idea that the possession of Braswell was adverse to the plaintiff. It is conceded that the authorities cited by plaintiff, in her answer to the motion to withdraw the execution, sustain the position that the possession of the mortgagor is not adverse to the mortgagee. Parker v. Banks, 79 N.C. 480. The plaintiff contends that, after default, the defendant was the tenant of the plaintiff at sufferance, and that until by some unequivocal act on his part the character of his tenure could not be changed. We do not think that in any aspect of the case the question of adverse possession arises. It...
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