Fleming v. Barden

• Decision Date: 01 April 1900
• Citation: 36 S.E. 17,126 N.C. 450
• Parties: FLEMING et al. v. BARDEN.
• Court: North Carolina Supreme Court

36 S.E. 17

126 N.C. 450

FLEMING et al. v. BARDEN.

Supreme Court of North Carolina

April 1, 1900

Appeal from superior court, Beaufort county; Starbuck, Judge.

Action by W. S. Fleming and others against Maggie Barden. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

A husband and wife conveyed land in trust for the wife for life, remainder to their children, by a deed authorizing the grantor to convey the land, and to require the trustee to join in the conveyance. The grantors and trustee executed an absolute deed, which was in effect a mortgage on the land to secure the husband's indebtedness, and after the death of both the wife and the trustee the mortgage was discharged by the extension of the time of payment of the husband's debt, and the remainder-men sued to recover the land from one who thereafter purchased it on foreclosure of the mortgage. Held, that the trustee had a bare legal title, which passed to the mortgagee on the execution of the mortgage, and hence the fact that one of his children had been 21 years of age more than 3 years before the action was brought to recover the land constituted no bar to the action.

A. O Gaylord, for appellant.

W. B Rodman, for appellees.

FURCHES J.

This is an action for the possession of land, in which the defendant denies title in the plaintiffs, alleges title in herself by mesne conveyances from plaintiffs' ancestors, and also by color of title ripened by adverse possession, and the statute of limitations. The facts presented are as follows: That in June, 1881, John L. Brown and wife, M. L. Brown, conveyed the land in controversy to Ashley Congleton, in trust for M. L. Brown for life, then for the issue of John L. and M. L. Brown, and, if the said M L. Brown should die without leaving issue, then for the said John L. Brown. But this deed expressly provided that the said John L. Brown and M. L. Brown shall have full power and authority, by and with the consent of each other, to convey the same at any time, "and said trustee shall join in the said conveyance, whether the same be in fee simple or otherwise," that on the 9th day of February, 1881, the said John L. borrowed $500 from J. B. Stickney, giving his bond due three years after date at 8 per cent., payable annually, and secured the same by a mortgage on this land executed by John L. and M. L. Brown and the trustee, Congleton. This mortgage was in the usual form, conveying the fee simple, with the condition that it should become void upon the payment of said bond. On the 3d of March, 1882, the trustee, Congleton, died, leaving three minor children, two of whom were minors at the commencement of this action. The other had been of age for three years and five months when the action was commenced. In August, 1884, the said M. L. Brown died, leaving, her surviving, her husband, John L., and the plaintiffs Mollie L. Fleming, Dora L., John L., and Lena M. Brown; the last three named being minors under 21 years of age, except Mrs. Fleming, who was under coverture when this action was commenced, and is still. The plaintiffs allege that this was their mother's land, that the debt was that of their father, and that the mortgage was only a security for the debt; and they further allege that the security, the mortgage lien on the land, was discharged by a contract made and entered into by Stickney, the mortgagee, and John L. Brown, the principal debtor, for an extension of time on the debt so secured by the mortgage; that this agreement was in the fall of 1884, to extend for one year for $50; that in January, 1888, Stickney sold under the mortgage, when Arthur Barden bought, and took deed to W. C. Ayers, who, on March 3, 1888, conveyed the same to the defendant, Maggie Barden, and that she has been in possession of the same ever since the date of her deed, in March, 1888. Upon the admitted facts and the evidence in the case the court submitted the following issues: "(1) Did Stickney agree with John L. Brown to extend time of payment of the mortgage debt from February 9, 1885, to February 9, 1886, in consideration of the payment by Brown of ten per cent. Interest on the debt for the year ending February 9, 1885, to wit, $50? Ans. Yes. (2) Was said consideration paid by Brown, and, if so, when? Ans. Yes, April, 1885. (3) Did R. T. Hodges have knowledge of his alleged appointment as trustee in the proceeding entitled 'John L. Brown and others ex parte'? Ans. No. (4) Are the plaintiffs the owners of and entitled to recover possession of the land described in the complaint? Ans. Yes. (5) What is the rental value of the land for the period beginning July 4, 1894, up to the present time? Ans. $300." Thereupon the court rendered judgment that the plaintiffs are the owners of and entitled to the possession of the land, etc.

Upon the close of the evidence the defendant moved to nonsuit the plaintiffs for the reason that the evidence, all taken to be true, did not make out a case for the plaintiffs. This was refused, and we see no error in its refusal. It seems to us that it could hardly be disputed but what there was evidence tending to prove all the facts alleged by the plaintiffs, and sufficient to authorize the jury to find the issues submitted to them as they did. But, taking the issues as found, and the facts as admitted, ...