Durant v. Crowell

• Decision Date: 30 May 1887
• Citation: 2 S.E. 541,97 N.C. 367
• Parties: DURANT and others v. CROWELL and another.
• Court: North Carolina Supreme Court

2 S.E. 541

97 N.C. 367

DURANT and others v. CROWELL and another.

Supreme Court of North Carolina

May 30, 1887

Appeal from superior court, Union county.

Suit by Frederick C. Durant, William W. Durant, Robert Taylor, W. D Judson, Charles Judson, Charles R. Jones, R. E. Cochrane Heloise H. Durant, and F. C. Durant, executor of Charles W Durant, deceased, against M. E. Crowell and his wife, for the appointment of a receiver, the correction and reformation of a morgtage deed, the foreclosure of the mortgage, payment of the debt secured thereby, and an account.

Trustees holding lands for themselves and associates, for mining purposes, conveyed them, the associates also releasing, to one person, to enable him to mortgage them, which he did, and reconveyed the lands to his grantors, subject to the mortgage. The mortgage, by the omission of the words of inheritance, conveyed only a life estate instead of a fee. All parties being nonresidents except one associate, he took possession, and held the land, subject to the mortgage, as agent for the trustees. Some years after his death, his administrator abandoned the land, which was let by the mortgagee's agent on a written lease. The tenant being in possession, the land was sold at judicial sale to pay the deceased associate's indebtedness, and bid in for a very small sum. The purchaser took possession of the land. The mortgagee and his assignee both being dead, held, that the latter's executor, upon clear evidence of the intention of the parties to the mortgage, the sum loaned also being much more than a life estate in the land was worth, was entitled to have the mortgage reformed so as to convey a fee and foreclosed, against such purchaser.

Burwell & Walker, for plaintiffs and appellants.

Covington & Adams and W. W. Fleming, for defendants.

DAVIS J.

The plaintiffs allege that in 1854 Jackson C. Lemmond and others, owners of the land in controversy, conveyed it, for the consideration of $25,000, to Charles Judson and W. F. Durant, in fee, in trust for themselves and their associates; that in June, 1857, said trustees, for the consideration of one dollar, released their interest to said Taylor; that these deeds were made to enable Taylor to borrow money upon a mortgage of the said land for the benefit of the association formed for mining purposes, and, after he had done so, to convey the land to the said trustees, or to one of them in trust for said associates; that, in pursuance of this agreement, Taylor, on the sixteenth of July, 1857, borrowed of Thomas C. Durant the sum of $23,170, and conveyed to him, by a mortgage deed, the said land to secure the same; that in August, 1857, Taylor, in further pursuance of said agreement, conveyed the said land to Charles Judson, for the consideration of one dollar, in trust for himself and associates, subject to the mortgage to Durant; that in 1859 Thomas C. Durant assigned the said mortgage, and the money due thereon, to Charles W. Durant; that the mortgage deed executed by Taylor to Durant to secure the loan was intended to be in fee, but by the ignorance, inadvertence, or mistake of the draughtsman, by the omission of the word "heirs" a life-estate, instead of a fee, was conveyed; that at the time of the execution of the mortgage, and ever since, Taylor had his residence and domicile in New York, and that at the said time, and up to the dates of their deaths, respectively, Thomas C. Durant and Charles W. Durant were domiciled in New York, and Charles Judson and the other associates, except Hugh Downing, were non-residents of this state,--the said Hugh Downing alone of said associates having resided in Union county,--and that in 1861 he took possession of said land as one of the associates, and as agent of the trustees; that in 1867 he contracted with C. W. Durant to purchase his interest in the land under the mortgage, and retained possession till 1878, recognizing the right of the trustees, and the existence of the mortgage, and that the mortgage debt had not been paid, and no part of the consideration under the contract to purchase the interest of Durant had been paid; that Downing died in 1870, when his administrator took possession of the land, and held it till 1878, after which time one Wager entered into possession, recognizing the right and interest of Charles W. Durant, as the administrator of Downing had done, and, by an agreement in writing, promising to pay $50 per year for the term of five years as rent therefor; that while the said Wager was in possession, in 1878, under a special proceeding for the purpose of a sale of the interest of Hugh Downing, deceased, to make assets to pay his debts, the interest of the said Downing in said land was sold and purchased by the feme defendant at the price of $66; that, at the time of said sale, the land was worth, for agricultural purposes, at least $8,000, besides its great mineral value; and that the said purchaser had full knowledge of the mortgage, and was not a purchaser for value or without notice. The plaintiffs Heloise and W. W. Durant are the heirs at law of Thomas C. Durant, and the said W. W. Durant is his administrator. The plaintiff F. C. Durant is the executor of Charles W. Durant, deceased, and is entitled to receive the amount that may be found due upon the said mortgage, and the other plaintiffs are necessary parties. It is alleged that the defendants are in possession and insolvent, and that if permitted to remain in possession, and receive the rents and profits, (which are alleged to be $600 per annum,) the plaintiffs will sustain irreparable damage. The prayer is for the appointment of a receiver, the correction and reformation of the mortgage deed, the foreclosure of the mortgage, and payment of the debt secured thereby, and an account, etc.

The defendants answer, and deny that the deeds to Taylor were made for the purposes alleged, or that there was any mistake in the mortgage deed, or that the mortgage debt has not been paid. They also deny the alleged contract between Durant and...