Capehart v. Dettrick

Citation91 N.C. 344
Case DateOctober 31, 1884
CourtUnited States State Supreme Court of North Carolina

91 N.C. 344

ALANSON CAPEHART
v.
LOUIS F. DETTRICK.

Supreme Court of North Carolina.

October Term, 1884.


CIVIL ACTION, tried on exceptions to a referee's report, at Fall Term, 1882, of NORTHAMPTON Superior Court, before McKoy, J.

This action, originally commenced by Alanson Capeheart against Asa Biggs and Kader Biggs, constituting the partnership firm of Kader Biggs & Co., was for an injunction to restrain them from making sale under a deed in trust to secure his indebtedness to them, and meanwhile for the statement of an account in order that the amount

[91 N.C. 345]

due be ascertained. The controversy between these parties has been adjusted, and Louis F. Dettrick was allowed to intervene and assert his claims as a creditor of the said Alanson Capeheart, and his right to enforce the payment of certain notes executed by James Capehart to his father, the said Alanson Capehart, secured in a deed in trust made by the former to the latter, which said notes were held as collateral security for the indebtedness of said Alanson Capehart.

The subject matter of this superseding and new controversy introduced by said Dettrick was referred to Spier Whitaker, who in due time made his report, and therein from the evidence accompanying, finds the following facts:

On February 11th, 1876, the said Dettrick held and owned five several notes, not under seal, executed by said Alanson Capehart to the Bradley Fertilizer Company, and by it transferred, of dates and amounts and maturing as follows:

One, dated on June 30th, 1875, at 5 months, for $600.

A second, of same date at 6 months, for $600.

A third, dated on July 10th, 1875, at 5 months, for $600.

A fourth, dated on July 20th, 1875, at 4 months, for $705.60.

A fifth, of same date, at 5 months, for $600.

On the same day this indebtedness subsisting, subject only to a credit of $760.18 paid on the 16th day of December, 1875, the said Alanson Capehart, to secure the same, assigned and delivered to said Dettrick fourteen promissory notes made by the said James Capehart to the assignor, Alanson Capehart, of dates maturing, and in amounts as follows:

One, dated January 1st, 1876, due at one year, for $7,500.

Six, of the same date, due respectively at 2, 3, 4, 5, 6 and 7 years, each in the sum of $5,850.

Seven, of the same date, due respectively at 8, 9,

[91 N.C. 346]

10, 11, 12, 13 and 14 years, each in the sum of $5,300.

Subsequently the said Alanson Capehart became further indebted to the said Dettrick by account for the sum of $375.99, with interest thereon from the 26th day of January, 1877.

To provide for and secure the aforesaid fourteen notes, on the day of their execution, the said James Capehart, by deed, conveyed to the said Alanson Capehart a valuable tract of land lying in Northampton county, upon trust that if the notes, as each becomes due, shall be paid off and discharged, the deed shall become inoperative and void; but should there be default in the payment of the said debt or any part as either may become due, “then the whole shall become due and payable, and this deed shall remain in force, and the said party of the second part, or in case of his absence, death or refusal or disability in any wise, then the acting sheriff of Northampton county, at the request of the legal holder of the said notes, may proceed to sell the property, herein before described, or any part thereof, at public vendue to the highest bidder at the court house door in the town of Jackson,” &c.; “and such trustee shall, out of the proceeds of said sale pay first the cost and expenses of executing this trust, including legal compensation to the trustee for his services, and next shall apply the proceeds remaining over to the payment of said debt or so much thereof as remains unpaid, and the remainder, if any, shall be paid to the said party of the first part, or his legal representative.”

The referee finds that the said Alanson Capehart has not promised to pay his indebtedness to said Dettrick at any time within three years next before the bringing this suit, and that the fourteen secured notes are due and unpaid.

From these facts the referee deduces and finds as conclusions of law--

1. That the recovery of the indebtedness of the said Alanson Capehart to the said Louis F. Dettrick is barred by the statute of limitations;

[91 N.C. 347]

2. That said Alanson Capehart is entitled to the possession of the fourteen notes described and secured in the deed; and

3. That the said Louis F. Dettrick take nothing by his suit, and that said Alanson Capehart recover his costs against him and the surety to his prosecution undertaking.

The said Louis F. Dettrick excepts to these findings of law, and his exceptions being overruled and the report confirmed, and judgment rendered accordingly, he appeals to this court.

Messrs. R. B. Peebles and Hinsdale & Devereux for plaintiff .

Messrs. W. Bagley, Mullen & Moore, T. C. Fuller and E. C. Smith, for defendant .

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

There are two material propositions of law involved in the rulings made by the referee and affirmed by the court, which the appeal requires us to examine and decide.

1. The series of notes mentioned in the deed, though upon their face many of them maturing in the future, have had the time of payment accelerated by a provision therein, and are now due and belong to said Alanson Capehart.

2. The effect of the lapse of time in barring a recovery on his indebtedness to the said Dettrick exonerates the collateral securities assigned to the latter from the lien of the indebtedness so barred, and entitles the debtor to their surrender.

The provision in the deed to which is ascribed an effect in hastening the maturity of the notes is, that if the debtor Alanson Capehart fail or refuse to pay the said debt or any part thereof, when the same or any part thereof shall become due and payable, according to the true tenor, date and effect of said notes, then the whole shall become due

[91 N.C. 348]

and payable, and this deed shall remain in force.”

This clause, thus interpreted, is in direct conflict with the form of the notes themselves, while they and the securing deed were...

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29 practice notes
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...650;Ellis v. Fairbanks, 38 Fla. 257, 21 South. 107;Conway v. Caswell, 121 Ga. 254, 48 S. E. 956, 2 Ann. Cas. 269;Capehart v. Dettrick, 91 N. C. 344;Casey v. Gibbons, 136 Cal. 368, 68 Pac. 1032;In re Hartranft's Estate, 153 Pa. 530, 26 Atl. 104, 34 Am. St. Rep. 717;U. S. v. Trust Co., 213 Pa......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...650); Ellis v. Fairbanks, 38 Fla. 257 (21 So. 107); Conway v. Caswell, 121 Ga. 254 (48 S.E. 956, 2 Ann. Cas. 269); Capehart v. Dettrick, 91 N.C. 344; Casey v. Gibbons, 136 Cal. 368 (68 P. 1032); In re Hartranft's Estate, 153 Pa. 530 (26 A. 104, 34 Am. St. Rep. 717); United States v. Trust C......
  • Stevens v. Turlington, (No. 96.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 3, 1923
    ...v. Goodwin, supra; Coor v. Smith, 101 N. C. 261, 7 S. E. 669; Kiser v. Combs, 114 N. C. 640, 19 S. E. 664; Capehart v. Dettrick, 91 N. C. 344; Whittkowski v. Watkins, 84 N. C. 457; Bruner v. Threadgill, 88 N. C. 361; Cunningham v. Davis, 42 N. C. 5. Such rights are given to the mortgagee to......
  • Demai v. Tart, No. 237.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 18, 1942
    ...but is in addition thereto, and, in the absence of an agreement to the contrary, it is independently enforceable. Capehart v. Dettrick, 91 N.C. 344, 352; Menzel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am. St.Rep. 647. The equitable remedy of foreclosure and execution of the trust is still ......
  • Request a trial to view additional results
29 cases
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...650;Ellis v. Fairbanks, 38 Fla. 257, 21 South. 107;Conway v. Caswell, 121 Ga. 254, 48 S. E. 956, 2 Ann. Cas. 269;Capehart v. Dettrick, 91 N. C. 344;Casey v. Gibbons, 136 Cal. 368, 68 Pac. 1032;In re Hartranft's Estate, 153 Pa. 530, 26 Atl. 104, 34 Am. St. Rep. 717;U. S. v. Trust Co., 213 Pa......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...650); Ellis v. Fairbanks, 38 Fla. 257 (21 So. 107); Conway v. Caswell, 121 Ga. 254 (48 S.E. 956, 2 Ann. Cas. 269); Capehart v. Dettrick, 91 N.C. 344; Casey v. Gibbons, 136 Cal. 368 (68 P. 1032); In re Hartranft's Estate, 153 Pa. 530 (26 A. 104, 34 Am. St. Rep. 717); United States v. Trust C......
  • Stevens v. Turlington, (No. 96.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 3, 1923
    ...v. Goodwin, supra; Coor v. Smith, 101 N. C. 261, 7 S. E. 669; Kiser v. Combs, 114 N. C. 640, 19 S. E. 664; Capehart v. Dettrick, 91 N. C. 344; Whittkowski v. Watkins, 84 N. C. 457; Bruner v. Threadgill, 88 N. C. 361; Cunningham v. Davis, 42 N. C. 5. Such rights are given to the mortgagee to......
  • Demai v. Tart, No. 237.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 18, 1942
    ...but is in addition thereto, and, in the absence of an agreement to the contrary, it is independently enforceable. Capehart v. Dettrick, 91 N.C. 344, 352; Menzel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am. St.Rep. 647. The equitable remedy of foreclosure and execution of the trust is still ......
  • Request a trial to view additional results

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