Davis v. Rogers
| Decision Date | 31 January 1881 |
| Citation | 84 N.C. 412 |
| Court | North Carolina Supreme Court |
| Parties | JOHN N. DAVIS v. JACOB ROGERS and others. |
MOTION in the cause heard at Spring Term, 1880, of UNION Superior Court, before McKoy, J.
The plaintiff, assignee of John S. Pardue, brings his action against the widow and heirs at law of Mosely Rogers, deceased, to have a deed absolute in form, and conveying the tract of land described in the complaint, declared to be a security for debt, and to be permitted to redeem the same. At spring term, 1872, a decree was passed determining the rights of the parties and the amount of the encumbering debt, so much of which as bears upon the present controversy is as follows:
“It is thereupon considered, adjudged and decreed by the court now here, that upon John N. Davis, or any one for him, paying into the office of the superior court clerk of Union county, for the use of the defendants and for their benefit equally, the sum of $311.19, on or before the 26th day of April, 1872, or within twenty days thereafter, and all costs to be taxed by the clerk, including an allowance of five dollars for his report, then and in that event, a conveyance of the land mentioned in the pleadings, is hereby decreed from the defendants, each and all of them, to the plaintiff, John N. Davis; but inasmuch as many of the defendants are minors, it is further declared, adjudged and decreed, pursuant to law, (Revised Code, ch. 32, § 24,) that upon John N. Davis complying with the terms of this decree on his part, the effect of this decree shall be to transfer to the said John N. Davis, the legal title of the said property, to be held in the same plight, condition and estate, as though the conveyance decreed was in fact executed, and shall bind and entitle the parties, in the same manner and to the same extent as the conveyance would, if the same were executed according to the decree,” with an order for its enrolment.
There is no direction for a sale upon the plaintiff's failure to redeem, and in this respect the decree is incomplete and open to amendment if it becomes necessary.
The present proceeding was commenced by notice of an intended motion for an order of sale of the land, served on the plaintiff September the 27th, 1876, followed by another notice, served September 22d, 1877, of a motion to be made to strike from the docket the following entries in the cause:
“Reed. of G. W. Flow, clerk, three hundred and eleven dollars and nineteen cents, in full of this judgment, this 14th of May, 1872.
+-------------------------+
¦Signed¦ROBT. H. PARDUE.” ¦
+-------------------------+
“May 11th, 1872, satisfied and paid to office $350.”
Numerous affidavits were offered in support of the motion for reforming the decree to which the plaintiff opposed his own answer on oath, in which he states in general terms that the conditions of the decree were fulfilled by his paying the money within the prescribed time, and that on May 11th, 1872, he paid to the clerk in currency $350, and took and was ready to produce his receipt therefor.
Upon this conflict of testimony the court directed the following inquiry to be submitted to the jury: “Has the decree of the superior court of $311.19 in this case made at spring term, 1872, been paid,” to which the jury responded in the affirmative. On the trial of the issue the plaintiff testified that on the day stated he paid into the clerk's office the amount specified in the decree, with costs, except the sum of $138, for which he gave his individual note to the clerk, and had afterwards paid that; that the money first paid in was borrowed from R. H. Pardue, administrator of the intestate, Mosely, and the witness produced the administrator's acknowledgment of full payment, and the judgment docket containing the memoranda set out in the notice of the motion to erase them from the record.
R. H. Pardue testified that, at the plaintiff's instance and for his convenience he accepted the plaintiff's note for the sum due by the decree ($311.19) executed on May 11th, 1872, to the witness individually, on which nothing has been paid, and he now offers to surrender it; that he never loaned the plaintiff money, nor was any paid into the...
To continue reading
Request your trial