Combs v. Porter

• Decision Date: 22 March 1950
• Docket Number: No. 241,241
• Court: North Carolina Supreme Court
• Parties: COMBS et al. v. PORTER et al.

Page 100

58 S.E.2d 100

231 N.C. 585

COMBS et al. v. PORTER et al.

No. 241

Supreme Court of North Carolina.

March 22, 1950

W. H. McElwee, North Wilkesboro, for plaintiffs appellees.

Trivette, Holshouser & Mitchell, North Wilkesboro, and J. F. Jordan, Wilkesboro, or defendants.

DEVIN, Justice.

Plaintiffs' allegation of title was supported by the stipulation that C. C. Combs was, at the time of his death, the owner of the land in controversy, and by the further fact that plaintiffs are the only heirs at law of C. C. Combs, the ancestor last seized. On the other hand, the defendants staked their case entirely on the Sparks mortgage plus evidence of a foreclosure sale thereunder, and the recorded deed purporting to have been executed in 1930 by the executors of the mortgagee wherein was recited forfeiture for nonpayment, due advertisement, and purchase by I. A. Combs under whom they claim. There was no plea of the statute of limitations or laches, nor allegation of adverse possession under color, nor that either of defendants was an innocent purchaser for value. The plaintiffs replied that the mortgage had been paid in the lifetime of C. C. Combs, that no foreclosure sale was ever advertised or held, nor had any deed pursuant thereto been executed by the executors of the mortgagee, and that the purported deed was fraudulent and void.

Upon these allegations and the conflicting evidence thereunder, as to payment of the mortgage, foreclosure sale and execution of the deed, the case was fought out, resulting in verdict and judgment for the plaintiffs.

While the first issue was apparently addressed only to the question of the execution and delivery of the deed by one of the executors of the mortgagee, in the light of the pleadings, evidence and charge of the court thereon, we think all the material questions litigated were presented to the jury under this issue and were answered in favor of the plaintiffs. There was no objection or exception to the form of this or any other issue submitted. Bonnell v. City of Greensboro, 164 N.C. 330, 80 S.E. 377; Stadiem v. Harvell, 208 N.C. 103, 179 S.E. 448.

The burden of proof was on the plaintiffs to show that the mortgage had been paid off and discharged before the purported sale. Rosemary Mfg. Co. v. Jefferson, 216 N.C. 230, 4 S.E.2d 434. Likewise, the recitals in the deed of the mortgagee's executors were prima facie evidence of the facts herein set forth (Dillingham v. Gardner, 219 N.C. 227, 13 S.E.2d 478), and the burden of proof was on the plaintiffs to show otherwise, but the verdict seems to have sustained the plaintiffs' attack upon the purported deed. Moreover, while the statute, G.S. § 45-4, authorizes the executors of a deceased mortgagee to exercise the power of foreclosure, it has been repeatedly held by this Court that when a power of sale is conferred upon two executors the power must be executed by them jointly, and that both must join in the sale and execution of the deed. Wasson v. King, 19 N.C. 262; Swann v. Myers, 75 N.C. 585; Trogden v. Williams, 144 N.C. 192, 204, 56 S.E. 865, 10 L.R.A., N.S., 867.

The court properly placed the burden of proof on all the questions embraced in the first issue on the plaintiffs, and his instructions to the jury presentation of the evidence and contentions of the parties thereon seem to have been free from prejudicial error.

The court further instructed the jury if they answered the first issue in favor of plaintiffs, that is no, they need not answer the second issue, but also added, 'if you should answer the first issue no, then you would go...