Fleming v. North Carolina Joint Stock Land Bank of Durham

• Citation: 2 S.E.2d 3,215 N.C. 414
• Decision Date: 12 April 1939
• Docket Number: 308.
• Parties: FLEMING v. NORTH CAROLINA JOINT STOCK LAND BANK OF DURHAM et al.
• Court: United States State Supreme Court of North Carolina

2 S.E.2d 3

215 N.C. 414

FLEMING v. NORTH CAROLINA JOINT STOCK LAND BANK OF DURHAM et al.

No. 308.

Supreme Court of North Carolina

April 12, 1939

The plaintiff brought this suit to have an accounting made between herself and certain of the defendants, to have a sale of lands made by the Land Bank under deed of trust executed by her declared void, and to have conveyances made thereunder set aside, to recover of the defendants for waste and for the value of timber cut upon the premises, and to be permitted to redeem the lands of which she claims she was deprived by the fraudulent devices of the Land Bank, the defendant Windham and others.

The plaintiff alleges that she secured a loan from the defendant North Carolina Joint Stock Land Bank, and while this was in force she entered into a contract with the defendant Windham under which he became her tenant on the lands in controversy and agreed, amongst other things, to pay the installments on the Land Bank debt as they became due; that Windham, with the design to mature the notes and cause default in their payment and bring about a sale of the lands for his own benefit failed to apply the rent to the installments, and that, in collusion with the Land Bank, Windham undertook to become and did become, the tenant of the Bank as to the lands. That the Bank made a separate contract of tenancy with said Windham, in violation of plaintiff's rights, and thereby went into possession of the lands; that the rents from the lands due plaintiff were sufficient to pay all installments as they became due upon the lands, but that the Land Bank refused or neglected to collect a proper rental from Windham and permitted a large amount of waste upon the premises; that the reasonable rental value of the lands while in the possession of the defendant Land Bank was amply sufficient to cover all demands which the said Land Bank might rightfully have against the plaintiff with respect to her deed of trust and the installments due thereon. It is further alleged that the defendant Land Bank and the defendant Windham fraudulently conspiring together, brought about a sale of plaintiff's land under the power of sale contained in the mortgage deed, in September, 1933, at which the Land Bank became purchaser at a grossly inadequate price. That in 1934 the defendant Land Bank conveyed the land to R. D. Harrington and wife, Eva Harrington, taking a deed of trust therefor in the sum of $4,400 to the Interstate Trustee Corporation, Trustee, co-defendant in this action, and that about thirty days thereafter the defendant Harrington and wife conveyed the lands to the defendant Windham; that during all this time the Land Bank and Harrington and wife knew that Windham held the lands under the rental agreement with the plaintiff and the terms thereof, and that he had breached his agreement in order to get a legal title to the land, and aided and assisted him in his unlawful acts.

The plaintiff further states that the defendants Land Bank and Windham have been in possession of the land for the years 1933 to 1937, inclusive, during which time they have farmed the lands and have not accounted to the plaintiff for the rents and profits; that the defendants have permitted a large amount of waste to be committed on the premises and have caused and allowed the defendant William H. Wood to go upon the land and cut and remove timber trees...