Davis v. Keen

• Decision Date: 07 November 1906
• Citation: 55 S.E. 359,142 N.C. 496
• Parties: DAVIS et al. v. KEEN.
• Court: North Carolina Supreme Court

55 S.E. 359

142 N.C. 496

DAVIS et al. v. KEEN.

Supreme Court of North Carolina

November 7, 1906

Appeal from Superior Court, Davidson County; Ferguson, Judge.

Action by Sylvester Davis and others against J. R. Keen and others. From a judgment in favor of plaintiffs, defendant Keen appeals. Affirmed.

A party cannot be silent under an alleged failure of the court to sufficiently state the evidence and explain the law, and then raise the objection after verdict against him.

The plaintiffs seek in this action to set aside a sale made under the power contained in a mortgage from Calvin Davis to Beek & Foust, at which sale the defendant Keen became the purchaser. The plaintiffs attacked the sale on several grounds, but in this appeal only one need be considered, as the appellant's assignment of error is confined to the second issue. The allegation of the complaint with respect to that ground of attack is that "the defendant Keen slandered the title of the said Calvin Davis, the mortgagor, and of the plaintiffs and his codefendants, Matthew and George Henry Davis, by publicly announcing to the purchasers gathered for the sale that Calvin Davis and the plaintiffs and Matthew and George Henry Davis (his codefendants) had no deed for the property being sold at the time and that, thereby, the said tract of land, now claimed by him, and which is well worth the sum of $300, brought only the sum of $45, which was bid by the said Keen, and for which sum a deed was made to him." The plaintiffs and the defendants, Matthew and George Henry Davis, are the heirs of Calvin Davis, the deceased mortgagor. The issues with the answers thereto are as follows: "(1) In advertising and selling the lands of Calvin Davis under the mortgage described in the complaint did the defendant Keen act as agent for the mortgagees, R. L Beek and T. W. S. Grimes, administrator of T. W. Foust? Ans. No. (2) On the day of sale under the mortgage of Calvin Davis, described in the complaint, did the defendant Keen slander the title of plaintiffs and of their deceased ancestor to the lands in dispute, and thereby cause it to bring a less price than its real value? Ans. Yes. (3) What price did the land bring on the day of sale? Ans. $45. (4) What was the true value of the land on the day of sale? Ans $250. (5) Did the defendants Beek and Grimes, in their deed to defendant Keen, follow the description and boundaries set out in the mortgage from Calvin Davis to Beek & Foust? Ans. Yes. (6) At the time of the execution of the mortgage from Calvin Davis to Beek & Foust, or at any time afterwards, was Calvin Davis the owner of the lands described in the deed from defendants Beek and Grimes to defendant Keen? Ans. Yes."

The defendant Keen objected to the form of the second issue upon the ground that the court should have added thereto the words "as alleged in the complaint." The issue, if thus amended, would be identical with the second issue tendered by the said defendant. The court refused so to amend the issue and the defendant Keen excepted. The evidence pertinent to the second issue was as follows: T. E. Dorsett testified, "As I recollect, Keen came and asked me to sell the land; that it was a little sale, and he wanted me to auction it. After the sale he paid me 25 cents, and I gave him a receipt. I asked him (at the sale) to read the advertisement, as it was in his writing; cannot say whether I had the notice of sale in my hands or not. T. W. S. Grimes, administrator of the deceased mortgagee, lives in Thomasville, and R. L. Beek, the surviving mortgagee, lives in the country. Don't recollect that he told me that Grimes and Beek wanted me to sell the land. I sold to the highest bidder, and Keen bid it in at $45. Don't remember number of people present." T. W. S. Grimes testified: "The mortgage was given by Calvin Davis to Beek & Foust in 1901 to secure $5, and it was in the handwriting of Keen. We could not collect the debt and decided to foreclose. Asked Keen to write the advertisement and he did so. Saw him on Saturday before the sale, and asked him if it was necessary for me and Beek to go to the sale, and he replied that he did not know--that he was going on some business. I asked him to see the sheriff and have him sell the land for us, and he said he supposed he could. I told him to bring the report of the sale when he came back, and we would make the deed to the purchaser. He brought back a statement showing the amount bid and different items of expense, among which is a charge of $1 for advertising sale and also $1 for writing the deed, retained by himself out of the proceeds of the sale. Keen wrote the deed after the sale." W. O. Burgin testified: "I spoke to Keen that morning about the sale, and he told me that there was something wrong with the title. I reckon what he said kept me away from the sale. If the title was all right, I thought the lot was worth $100. If there was one acre, it was worth $200. I wanted to buy it for speculation, and would have gone to the sale if Keen had not told me the title might not be good. My recollection is that he said he was going to see about the sale. I think I asked him about the title, and he said the title might not cover the lot. I had looked at the lot. There has been litigation about the title ever since the sale." Z. B. Morris testified: "I was at the sale. Dorsett and Keen came out on the courthouse steps. Keen read a paper, and to the best of my recollection handed it back to the sheriff. Some one in the crowd asked about the title, and, as I recollect, Keen said there was no deed to the land or something to that effect. I went to the sale expecting to bid, but did not bid, as I was afraid of the title, after Keen's statement was made." M. P. Murphy testified: "I was at the sale, and heard Keen talking in the sheriff's office before the sale. He talked like it might be a good while before one could get title, and might be a long while. I went there to bid, but after hearing what Keen said, I did not bid. The deed to Keen from the mortgagee covers all the land. Keen said he reckoned the mortgagees would make such title as they could, and added that sometimes you could get a good title, and sometimes you couldn't.' D' The value of the lot was shown, and there was evidence that the heirs of Calvin Davis did not know of the sale. The defendant Keen testified in his own behalf, and the material part of his testimony was as follows: "Some one asked me if the parties would make a warranty deed, and I said I supposed they would make as good a deed as they could. They asked me about the title, and I told them I understood some one claimed part of the lot, and that I had never seen any deed. It was the truth that I had never seen any deed, and I had heard the parties claimed part of the land. At the depot, on the morning of the sale, Burgin asked me about the land and title, and I told him the title was uncertain to part of the land. So I understood it was, and I only gave the rumor." It was admitted that Calvin Davis was the owner of the land described in the pleadings at the time the mortgage was made to Beek & Foust.

The court charged the jury as follows: "As to the second issue, plaintiffs allege that defendant Keen at the sale slandered the title to the land, and thereby caused the land to bring less than its true value; that said Keen stated at the sale that Calvin Davis had no deed for the land. Defendant Keen denies that he slandered the title or made the statement alleged. Now, it is for you to say from the evidence how this is. [ Did defendant Keen falsely, and with the purpose of deterring others from bidding at the sale, state that Calvin Davis had no title to said land, and thereby cause it to bring at the sale less than its true value? If you so find from the evidence, by the greater weight of the evidence, you will answer the second issue 'Yes.' If you fail to find from the evidence, by its greater weight, that he did so state, and thereby cause the land to bring less than its value at the sale, then you will answer this issue 'No."D' Defendant Keen excepted to that part of the charge in brackets. The court also charged the jury as to the other issues, and no exception is made to his charge as to them.

The defendant Keen moved for a new trial upon the following exceptions stated: "(1) The failure of the court to submit the issues proposed by this defendant. (2) The submission of the second issue in the form adopted by the court. (3) That the court failed to state in a plain and correct manner the evidence in the case, and to declare and explain the law arising thereon. (4) There was no evidence that the statements made by the defendant, J. R. Keen, at the sale about the title were false, and the court therefore erred in instructing the jury that if Keen falsely stated that Calvin Davis had no title to the said land, and thereby caused it to bring less than its real value, they will answer the second issue 'Yes." D' The motion was overruled, and the defendant Keen...