Bunn v. Holliday

• Decision Date: 22 January 1936
• Docket Number: 172.
• Citation: 183 S.E. 278,209 N.C. 351
• Parties: BUNN v. HOLLIDAY et al.
• Court: North Carolina Supreme Court

183 S.E. 278

209 N.C. 351

BUNN v. HOLLIDAY et al.

No. 172.

Supreme Court of North Carolina

January 22, 1936

Appeal from Superior Court, Halifax County; Devin, Judge.

Action by Isaac Bunn against W. G. Holliday and J. W. Whitaker trading as Holliday & Whitaker, and R. C. Dunn, trustee. Judgment for defendants and plaintiff appeals.

Affirmed.

Cestui que trust has right to buy at trust sale unless fraud or collusion is shown.

This is an action brought by plaintiff against the defendants to set aside a trustee's sale of certain land, alleged to be owned by plaintiff, and declare same null and void, to have marked "paid and satisfied in full" certain mortgages and deeds of trust on the property which were duly recorded, to recover judgment against defendants Holliday and Whitaker for a sum set forth, and to declare plaintiff the owner of the land and that he be given possession of the same.

The defendants denied the material allegations of the complaint and set up the plea of res judicata and estoppel.

T. T Thorne, of Rocky Mount, and L. L. Davenport, of Nashville for appellant.

Dunn & Johnson, of Enfield, and Geo. C. Green, of Weldon, for appellees.

PER CURIAM.

At the close of plaintiff's evidence the defendants in the court below made a motion for judgment as in case of nonsuit. C.S § 567. The court below allowed the motion, and in this we can see no error.

The record discloses: "It was admitted that the plaintiff theretofore was the owner of two tracts of land situate in Halifax County, North Carolina, one tract containing 239.15 acres, and the second tract containing eleven acres, more or less, all known as homeplace and farm of the plaintiff. It was further admitted that the plaintiff executed his note to the defendants to secure an indebtedness of $1,725.00 secured by the said lands, which said note was due and payable on December 15, 1929, and it was further admitted that the defendant, R. C. Dunn, was attorney for the defendants. It was further admitted that the property had been sold by R. C. Dunn, Trustee, in a deed of trust executed by the plaintiff to R. C. Dunn, to secure the said note of $1,725.00 to Holliday and Whitaker, and that at such sale Holliday and Whitaker became the purchasers of said land for the sum of $1,000.00, and are now in the possession of said lands. The defendants further admitted that R. C. Dunn, Trustee, in the said deed of trust, foreclosed the said deed of trust by selling said lands to satisfy said debt at the request of the defendants, Holliday and Whitaker."

The plaintiff testified, in part: "I moved to this place in January, 1909, and lived there from then until a month or two ago, when they had the Sheriff move me off-January 16, 1935. * * * I raised a family there. When I was operating the farm I worked four mules regularly and sometimes five, and since Mr. Holliday and Mr. Whitaker have had the place they work six regularly. In 1931, the year they took it away from me, I raised some tobacco, peanuts and cotton. Since 1931 I have not had any tobacco, only had peanuts, cotton and corn. In 1931, when Mr. Holliday and Mr. Whitaker took it, the 267 acres and improvements were worth anywhere from $12,000, to $13,000. * * * The paper is "Holliday and Whitaker vs. Isaac Bunn.' They really put me out; kicked everything I had out in the yard, and it was raining and sleeting at the time. My wife and I executed a deed of trust to R. C. Dunn on April 8, 1929. I went to see Mr. J. W. Whitaker about getting the money. At the time there was a prior incumbrance on the land of between $3,100 and $3,300, to the Joint Stock Land Bank of Raleigh. It was one of the thirty-three year mortgages and I was up on the installments. The reason I borrowed the money through Mr. Holliday and Mr. Whitaker was because I owed a note to the Scotland Neck Bank and it was being liquidated, and the agent told me something had to be done. * * * I went back they said they would make the loan of...