Demai v. Tart

• Citation: 19 S.E.2d 130,221 N.C. 106
• Decision Date: 18 March 1942
• Docket Number: No. 237.,237.
• Court: United States State Supreme Court of North Carolina
• Parties: DEMAI. v. TART et al.

19 S.E.2d 130
221 N.C. 106

DEMAI.
v.
TART et al.

No. 237.

Supreme Court of North Carolina.

March 18, 1942.

[19 S.E.2d 131]

Appeal from Superior Court, Harnett County; H. A. Grady, Emergency, Judge.

Action by Katie Lee Demai, administratrix of the estate of Jesse B. Lee, Sr., deceased, against Flonnie M. Tart and another, to recover on note and to foreclose a mortgage. From a judgment, plaintiff and the defendant Flonnie M. Tart appeal.

No error.

On January 14, 1928, the defendant, Tart, executed to Jesse B. Lee, Sr., plaintiff's intestate, a deed of trust conveying the lands therein described in security for the payment of a debt of $2,000. The defendant at the same time executed to the plaintiff's intestate two promissory notes in the sum of $1,000 each, bearing interest from date, due respectively April 13, 1928, and December 15, 1928, which are recited in the deed of trust.

Alleging failure to pay the notes, and hence breach of the conditions of the trust, the plaintiff, administratrix of the mortgagee who had meantime died, brought this action to recover on the notes and foreclose the mortgage. Suit was instituted March 6, 1941.

The defendants admitted the execution of the notes and mortgage, pleaded partial payment of the note due April 13, 1928, and pleaded the statute of limitations on the note maturing December 15, 1928.

The jury found with the defendants as to the note maturing April 13, 1928, and no controversy respecting it is involved in the appeal.

On the note due December 15, 1928, there appears the following entry of credit, in the handwriting of the now decedent payee: "Paid on this note $2.50 April 20, 1938".

Being of opinion that the indorsement was not sufficient, as there was no evidence aliunde to support it in any aspect, the judge gave the jury a peremptory instruction to find the issue relating to the bar of the statute in favor of defendants and denied recovery on the note. The form of the instruction is, in hac vice, immaterial.

[19 S.E.2d 132]

Upon instruction the jury found the action to foreclose the mortgage not barred by the statute of limitation. Judgment of foreclosure followed, with provision that the proceeds of sale be applied, as necessary, in satisfaction of the whole debt, including that evidence by the $1,000 note barred by the statute. The amount due on this note, without application of the statute of limitation, was ascertained by the verdict.

The plaintiff appealed, assigning as error the instruction given to the jury to find that the note due December 15, 1928, was barred by the statute, and refusal of recovery thereupon in the judgment, supporting these objections by formal exceptions to the instruction, to the refusal to set aside the verdict on the appropriate issue, and to the signing of the judgment which does not specifically decree recovery on the note.

Defendant, Tart, appealed, assigning as error the signing of the judgment authorizing the sale of the lands and the application of...