Crook v. Warren

• Decision Date: 22 September 1937
• Docket Number: 99.
• Citation: 192 S.E. 684,212 N.C. 93
• Parties: CROOK v. WARREN et al.
• Court: North Carolina Supreme Court

192 S.E. 684

212 N.C. 93

CROOK v. WARREN et al.

No. 99.

Supreme Court of North Carolina

September 22, 1937

Appeal from Superior Court, Buncombe County; J. H. Clement, Judge.

Action by Louisa Warren Crook against L. B. Warren, by his guardian ad litem, Paul Warren, wherein the International Harvester Company of America was made a party defendant on motion of the defendant L. B. Warren, who set up a cross-action against such defendant. The exception of the International Harvester Company of America to the refusal of the judge of the general county court to grant its motion to dismiss as of nonsuit was sustained by the superior court, and the defendant L. B Warren appeals.

Affirmed.

This action was instituted by the plaintiff against the individual defendants in the general county court of Buncombe county to recover possession of a certain tract of land described in the complaint. The plaintiff claimed title to said lands through a deed of foreclosure executed by the trustee under the power of sale contained in the deed of trust from the defendant L. B. Warren, executed in December, 1927, securing an indebtedness of $3,007.80, payable to the International Harvester Company of America. The note secured by this deed of trust was transferred and assigned by the International Harvester Company of America to Gilbert B. Crook on January 16, 1936, and on March 2, 1936, Gilbert B. Crook assigned same to the plaintiff herein, long after the maturity date of said note. The land was sold by the trustee at the request of the plaintiff, and the plaintiff became the purchaser at the sale.

On motion of defendant L. B. Warren, the defendant International Harvester Company of America was made a party defendant, and the said L. B. Warren in his answer to the complaint set up a cross-action, or counterclaim, against the corporate defendant, alleging that the indebtedness secured by said deed of trust had been paid and satisfied in full prior to the transfer of said note to the plaintiff; and that the sale under said deed of trust was void. In his prayer for relief the said defendant seeks to have the sale under said deed of trust declared null and void; or, if same is not adjudged to be void, that he recover of the corporate defendant $2,500 damages. In the general county court the motion of the defendant International Harvester Company of America, to dismiss the cross-action of the defendant Warren as of nonsuit was denied. Issues were submitted to the jury and answered as follows:

"1. Is the plaintiff the owner of and entitled to the possession of the lands described in the complaint? Answer Yes.

2. Did the defendant L. B. Warren pay in full and satisfy the note secured by the deed of trust executed on the 7th day of December 1927, as alleged in the answer of said defendant? Answer: Yes.

3. If so, what amount of damages, if any, is the said defendant L. B. Warren entitled to recover of the defendant International Harvester Company? Answer: $800.00."

On appeal to the superior court the trial judge sustained the exception of the Harvester Company to the refusal of the judge of the general county court to grant his motion to dismiss as of nonsuit, and the defendant L. B. Warren appealed.

In action to recover possession of land, title to which plaintiff claimed through a deed of foreclosure executed under power of sale contained in deed of trust and wherein note secured by deed...