Christmas v. Haywood

• Decision Date: 10 November 1896
• Citation: 119 N.C. 130,25 S.E. 861
• Court: North Carolina Supreme Court
• Parties: CHRISTMAS. v. HAYWOOD.

25 S.E. 861

119 N.C. 130

CHRISTMAS.

v.HAYWOOD.

Supreme Court of North Carolina.

Nov. 10, 1896.

Mortgage—Foreclosure—Defenses—Trial.

1. An answer to a complaint in an action to foreclose a mortgage, pleading an agreement of the mortgagee to receive a portion of the mortgaged premises in payment, and an offer to comply with the agreement by the mortgagor, does not state any defense where it is admitted that the premises are subject to other incumbrances.

2. It is not error to exclude evidence of a defense which is not pleaded.

Appeal from superior court, Wake county; Mclver, Judge.

Action of foreclosure by Mary M. Christmas, executrix of T. B. Bridget's, against Joseph A. Haywood and others. Judgment for plaintiff, and defendant Haywood appeals. Affirmed.

S. G. Ryan and Armistead Jones, for appellant.

Battle & Mordecal and Argo & Snow, for appellee.

MONTGOMERY, J. This was an action for the foreclosure of a mortgage. The debt was a balance of purchase money due by the defendant to the plaintiff, as executrix of Thomas B. Bridgers, for the Land conveyed in the mortgage. There were other mortgage and also judgment creditors of the defendant of subsequent date and lien to the mortgage of the plaintiff's testator, and they were made parties to the suit The defendant, in his answer, sets up an agreement, in writing, which was signed by the testator, in which he agreed to receive, upon a final settlement of the debt due upon the land purchase (numerous payments having been made prior to the agreement), so much of the land, at the price per acre originally agreed to be paid by the defendant for the same, as would be equal to the balance of the debt; and he averred that he had offered to the plaintiff to carry out the agreement, and that he was, at the time of filing the complaint, ready an3 willing to do so. This feature of the case can be eliminated from the controversy, for the reason that no proof whatever was offered on the trial about the matter; and, further, because in the answer It is admitted, and in the verdict of the jury it is established, that the land which is conveyed in the mortgage is incumbered by numerous judgment and mortgage liens. The defendant therefore could not get the benefit of the agreement, because he could not convey to the devisees under the will of the testator a good and unincumbered title to any part of the land. The persons entitled under the will would have the right to demand that the land which the defendant might convey under the agreement in satisfaction of the debt should be free from incumbrances, and that the title should be good. That is the true construction of the agreement The first exception of the defendant is the refusal of the judge to submit two issues tendered by him, viz.: What is the present value of the land purchased by Haywood of Bridgers? What is the value of the land agreed by Bridgers to be taken back from Haywood? His honor properly refused the issues. They do not arise upon the pleadings. There is not a word in the complaint and answer which raises such. It cannot be error to refuse to submit issues not raised by the pleadings. McElwee v. Blackwell, 82 N. C. 345; Miller v. Miller, 89 N. C. 209; and the numerous cases cited In Clark's Code, § 393.

The second exception of the defendant Is to the refusal of his honor to...