Byrd v. Hicks

• Decision Date: 11 October 1922
• Docket Number: 227.
• Citation: 113 S.E. 660,184 N.C. 628
• Parties: BYRD v. HICKS ET AL.
• Court: North Carolina Supreme Court

113 S.E. 660

184 N.C. 628

BYRD v. HICKS ET AL.

No. 227.

Supreme Court of North Carolina

October 11, 1922

Appeal from Superior Court of Duplin County; Lyon, Judge.

Action by A. D. Byrd against Georgie Hicks and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The action is to restrain sale of certain lands sold to plaintiff by defendant Georgie Hicks, and advertised to be sold under a deed of trust given to secure purchase price. On the facts presented there was judgment continuing the restraining order till the hearing, and defendants excepted and appealed.

In action to restrain foreclosure sale under trust deed, held that the holder of a half interest in a note secured by the deed of trust was a necessary party.

H. E Faison, of Clinton, Robinson & Robinson, of Fayetteville, and Stevens, Beasley & Stevens, of Warsaw, for appellants.

H. D Williams, of Kenansville, and R. D. Johnson, of Warsaw, for appellee.

PER CURIAM.

On the hearing there were facts in evidence on the part of plaintiff tending to show: That on the 18th of December, 1919 defendant Georgie Hicks sold at auction and conveyed to plaintiff five tracts of land situate in said county, for $18,074.73. That plaintiff at time of sale paid cash to amount of $3,614.97, and executed for remainder of purchase price, seven promissory notes, payable one, two, three, etc to seven years from date, each for sum of $2,065.68, giving also a deed of trust on the property to I. R. Williams, with power of sale to secure said indebtedness. That on January 21, plaintiff paid to the grantor, Miss Hicks, on said indebtedness, the interest on the notes, $867.60, and made a further payment thereon of $82.60; the payee agreeing to extend the period of maturity for said indebtedness for one year, etc., or until December 18, 1921. That in October 1921, plaintiff, finding that he would be unable to carry out the terms of sale, and meet his indebtedness for the land, proposed in writing to surrender his entire interest in the property and lose all payments made by him to date to Miss Hicks, on cancellation of the remainder of the debt, and said proposition was accepted in writing by defendant, and she took possession of the property pursuant to the agreement.

There was denial on part of defendant that there had been any binding acceptance of plaintiff's proposition, and with averment further that the first note of $2,065.68, had been...