First-Citizens Bank & Trust Co. v. Parker

• Decision Date: 26 March 1952
• Docket Number: FIRST-CITIZENS,No. 247,247
• Citation: 235 N.C. 326,69 S.E.2d 841
• Court: North Carolina Supreme Court
• Parties: BANK & TRUST CO. v. PARKER.BANK & TRUST CO. v. PARKER et ux. PARKER et ux. v.BANK & TRUST CO. et al.

Page 841

69 S.E.2d 841

235 N.C. 326

FIRST-CITIZENS BANK & TRUST CO. v. PARKER.

FIRST-CITIZENS BANK & TRUST CO. v. PARKER et ux.

PARKER et ux. v. FIRST-CITIZENS BANK & TRUST CO. et al.

No. 247

Supreme Court of North Carolina.

March 26, 1952

E. A. Parker, Benson, and Jane A. Parker, Smithfield, for appellants.

Lyon & Lyon, Smithfield, for First-Citizens Bank & Trust Co., Guardian of Henry A. Hodges, appellee.

Levinson & Batton, Smithfield, for J. H. Strickland and wife Mabel Strickland, and Riverside Brick & Tile Co., appellees.

DEVIN, Chief Justice.

The judgment in these cases which the appeal brings up for review is the culmination of a series of transactions, constant litigation and recurring appeals which have extended over a period of twenty years. The primary and persistent purpose of this litigation was the settlement of a guardianship fund which had gone into the hands of James D. Parker, former guardian. Certain legal phases of the controversy have heretofore been considered by this Court. First-Citizens Bank & Trust Co. v. Parker, 225 N.C. 480, 35 S.E.2d 489, 163 A.L.R. 1003; Grady v. Parker, 228 N.C. 54, 44 S.E.2d 449; Grady v. Parker, 230 N.C. 166, 52 S.E.2d 273; First-Citizens Bank & Trust Co. v. Parker, 232 N.C. 512, 61 S.E.2d 441. Thus from the permanent pages of the North Carolina Supreme Court Reports appears in outline the story of these transactions which the present appeal brings up again as the background of appellants' exceptions to the rulings of the court below.

In chronological order the record may be restated as follows: July 4, 1932, James D. Parker resigned as guardian of Henry A. Hodges, incompetent veteran of World War I, and in 1933 the succeeding guardian instituted suit to recover funds which had gone into the hands of Parker as guardian. In September 1935, this suit resulted in judgment against Parker for $8,023.81, based on the verdict of the jury that he had mingled the funds of his ward's estate with his own and had not accounted for same.

As belonging to the estate of his ward James D. Parker turned over to the succeeding guardian a note and deed of trust executed by himself and wife, and payable to himself as guardian, in the sum of $4,000, conveying 37.5 acres of land and a lot called office lot in Smithfield. The succeeding guardian obtained judgment of foreclosure of this deed of trust in 1936, and sale of the 37.5 acres of land, under the judgment, by W. B. Wellons Commissioner, for $600, to Clifton Beasley was confirmed December 30, 1936. The money was paid, deed delivered and Beasley went into possession January 1, 1937. The judgment was credited with net proceeds of the sale.

In 1945 the plaintiff Bank as successor guardian instituted suit to renew the $8,023.81 judgment with interest, subject to all credits. This suit bore civil issue docket No. 5496.

In 1946 the plaintiff Bank as successor guardian instituted suit to renew the $4,000 judgment, subject to credits. This suit bore civil issue docket No. 5584.

December 2, 1946, James D. Parker and wife instituted suit to redeem the 37.5-acre tract of land and for an accounting, alleging the sale of the land under judgment of foreclosure was void for the reason that H. V. Rose, the trustee in the deed of trust, had not been made a party. This suit bore civil issue docket No. 5620. Since the death of James D. Parker in 1948 this suit is being carried on by Mrs. Agnes A. Parker individually and as executrix of James D. Parker.

The appeal now brought to this Court, the fifth in the series, is being prosecuted by Mrs. Agnes A. Parker, Executrix of her late husband James D. Parker, and Mrs. Agnes A. Parker individually, defendants in Nos. 5496 and 5584, and plaintiffs in No. 5620.

At the November Term, 1951, of Johnston Superior Court, by consent of all parties, these three cases were consolidated and jury trial waived. It was agreed that the judge presiding at that term should find the facts, answer the issues raised, and render judgment thereon. From the evidence offered the judge set out his findings of fact specifically in the form of answer to issues submitted and rendered judgment disposing of the matters involved in the three cases.

Though the record is unnecessarily voluminous (482 pages), and the assignments of error unduly multiplied, the two principal questions presented involve: (1) the right of the successor guardian to maintain suits to renew former unsatisfied judgments, and (2) the right of appellants to redeem the tract of land sold under foreclosure and for an accounting. To the rulings of the trial judge on the evidence relating to these issues and to his conclusions thereon the zeal of counsel has prompted numerous exceptions.

1. The right of plaintiff Bank, successor guardian, to maintain Suits No. 5496 and No. 5584 to renew the judgments rendered against the former guardian and his executrix finds support in the statute, G.S. § 1-47, subd. 1, Rodman v. Stillman, 220 N.C. 361, 365, 17 S.E.2d 336, and is sustained in this instance by the decision of this Court in Grady v. Parker, 230 N.C. 166, 52 S.E.2d 273. All the credits on these judgments warranted by the evidence and found by the court are set out in the judgment appealed from. According to the evidence the notes and choses in action belonging to James D. Parker which were turned over by him to the succeeding guardian to be collected and credited on the original judgment, proved practically worthless, and the court found that credit was given for the small amount collected therefrom. Neither James D. Parker nor his executrix offered objection to the subsequent sale of the office lot conveyed in the deed of trust and joined in quitclaim deed to the purchaser. Credit was duly given on the judgment for the amount of such sale together with rents received less taxes and repairs. It is noted that the amount of the $4,000 deed of trust and the consequent judgment thereon was embraced in the $8,023.81 judgment, and this fact was duly considered by the judge and entered into the judgment. See Grady v. Parker, 230 N.C. 166, 52 S.E.2d 273, supra.

It was found, and the evidence supports the finding, that the executrix of James D. Parker was entitled to certain credits on the $8,023.81 judgment, No. 5496, as of the dates set out, derived from collections from other securities turned over by Parker, $256.10 and $41.45, from the surety on Parker's bond $442.92, and from execution sale of other land $4,919.20, First-Citizens Bank & Trust Co. v. Parker, 232 N.C. 512, 61 S.E.2d 441, supra, in total sum of $5,659.67.

And the amounts credited on the $4,000 judgment No. 5584 totaled $5,381.43, being the net amount received from sale of 37.5 acres of land, and from rents and sale of the office lot. These credits on the collateral debt of James D. Parker and Mrs. Agnes A. Parker evidenced by the note and deed of trust were adjudged to be credits on the judgment in No. 5496.

Since the principal debt owed by James D. Parker was that represented by the judgment referred to in No. 5496 in the sum of $8,023.81 with interest from January 1, 1932, and the judgment of $4,000 in No. 5584 on the note and deed of trust of James D. Parker and Agnes A. Parker was embraced in the larger judgment, in determining the balance now due duplication in the charges of interest, which would otherwise result from adding interest on the $4,000 judgment, was avoided by the provision below that the amount paid in satisfaction of that judgment No. 5584 should be credited on the principal judgment in No. 5496. That is, whatever interest is charged on judgment No. 5584 will be credited on the judgment No. 5496, so that no injury will arise to either the executrix of James D. Parker or Mrs. Agnes A. Parker.

Appellants' exceptions to the rulings of the trial judge relating to the suits No. 5584 and No. 5496 to renew the original judgments have been examined and found to be without substantial merit.

2. It was decided by this Court in 1947, Grady v. Parker, 228 N.C. 54, 44 S.E.2d 449, that the foreclosure suit, under which the 37.5-acre tract of land was sold, improperly undertook to pass the title to the land for the reason that the trustee in the deed of trust, in whom was the legal title, had not been made a party to the suit. The evidence disclosed, however, that the sale was confirmed December 1936, and deed delivered, and the grantee entered into possession January 1, 1937. James D. Parker and wife Agnes A. Parker did not enter suit to redeem until December...