Crain v. Hutchins

• Decision Date: 30 October 1946
• Docket Number: 94
• Citation: 39 S.E.2d 831,226 N.C. 642
• Parties: CRAIN et ux. v. HUTCHINS et al.
• Court: North Carolina Supreme Court

39 S.E.2d 831

226 N.C. 642

CRAIN et ux. v. HUTCHINS et al.

No. 94

Supreme Court of North Carolina

October 30, 1946

This is a civil action brought by the plaintiffs to cancel two notes of $250 each and deed of trust securing same executed by them, and to restrain foreclosure sale already advertised under said deed of trust, wherein it is alleged that they had paid said notes by performing certain work and furnishing certain articles, under separate contracts, tried upon the following issues:

'1. Did the plaintiffs and the defendant, J. H. Hutchins, enter into an agreement known as the substitute agreement under the terms of which it was agreed that the plaintiffs, by their own labor and own expense for a period of five years would improve the farm of the defendant in the way of cutting ditches, covering up fills, grubbing lands, and clearing lands in consideration that the defendant would pay off and discharge two certain notes owing by the plaintiffs, each in the sum of $250.00? Answer: No.

'2. Did the plaintiffs perform said substitute agreement on their part, as alleged in the complaint? Answer: No.

'3. Did the defendant, J. H. Hutchins, commit a breach of said substitute contract, as alleged in the complaint? Answer No.

'4. What is the reasonable value of services performed by the plaintiffs for the defendant, Hutchins, if anything, for which the plaintiffs have not been paid? Answer: No.

'5. What is the reasonable value of the corn, hay and other crops furnished the defendant Hutchins by the plaintiffs for which the plaintiffs have not been paid? Answer: No.

'6. In what amount, if anything, are the plaintiffs indebted to the defendant by reason of the payment of the aforesaid notes of $250.00 each? Answer: $500.00, with interest.

'7. In what amount, if any, is the defendant entitled to recover of the plaintiffs on account of improvements of the house on the 17-acre tract? Answer: $300.00.'

Upon the answering of the issues as above indicated His Honor entered judgment to the effect that the defendant, J. C Ramsey, the trustee therein, foreclose the deed of trust that the defendant recover of the plaintiffs the sum of $300 and that the plaintiffs and the bondsmen be taxed with the costs of the action, to which judgment the plaintiffs objected and excepted, and appealed to the Supreme Court, assigning errors.

Geo. M. Pritchard, of Asheville, for plaintiffs, appellants.

Carl R. Stuart, of Marshall, for defendants, appellees.

SCHENCK Justice.

The plaintiffs allege that they executed two promissory notes for $250 each, secured by purchase money mortgage. The uncontroverted evidence tends to show that defendant Hutchins discounted or 'took up' these notes and now owns the same. They are past due. While the plaintiffs allege payment the jury resolved that issue against them.

So then it appears that defendant Hutchins holds two unpaid, past-due notes of plaintiffs which are secured by mortgage lien on land. Therefore there is no reason why the decree of foreclosure should not be affirmed.

While it is true that defendant failed to prove that the feme plaintiff joined in any contract to convey the locus to defendant, this allegation is made as a foundation for defendant's claim...