Gibson v. Barber
| Decision Date | 22 May 1888 |
| Citation | 6 S.E. 766,100 N.C. 192 |
| Parties | GIBSON v. BARBER et ux. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Richmond county; CONNER, Judge.
Action by W. A. Gibson against H. A. Barber and wife to recover possession of land purchased by plaintiff at mortgage sale. Judgment for defendants. Plaintiff appeals.
In an action for the possession of land, with damages for its detention, a statement in the judgment, following the general statement of facts, that "the rental value of said land was $40 or $50, is a sufficient finding of such rental value.
C. W Tillett and P. D. Walker, for appellant.
J. D Shaw and John Devereaux, for appellees.
The defendant Hugh A. Barber, becoming indebted to the firm of W F. Kornegay & Co. in the sum of $2,000 due by notes, to secure the same conveyed to the said creditors, by deed of mortgage with a power of sale in case of default in making payment, as each became payable, a steam-engine and certain other machinery, as also the tract of land described in the complaint, and sought to be recovered in the present action. The indebtedness not having been provided for at maturity according to the stipulations in the mortgage, the personal property conveyed therein was put up and sold by an agent and attorney of the mortgagees, employed for that purpose, and, being bid off by the agent conducting the sale, was put down to them, as purchasers, at the price of $1,500. In like manner, on the day following, and after due advertisement, the land was also sold at the court-house by the agent, who, on behalf and by authority of the plaintiff, Gibson, bid off the same for him at the price of $500, and accordingly, on his making payment of the price, the said W. F. Kornegay & Co. executed a deed of conveyance therefor to him. The present action was then commenced to recover the possession withheld by defendant, damages for the detention, and to establish title to the premises. The defense arises out of the foregoing statement of facts, and the defendant resists the claim, insisting upon the absolute nullity of the attempted sale of the personal property, and demanding that the deed, purporting to pass the estate in the land, be declared null and inoperative to divest the defendant of his equity of redemption therein, and that the plaintiff holds the legal estate clothed with the same attaching trusts as when held by the mortgagees. He also asks for a reference of the account between the parties to the mortgage, claiming that there will be found nothing due from him. A jury was dispensed with, and the court, by consent, finds, upon the testimony of plaintiff's witnesses, the above facts. At defendant's instance, W. F. Kornegay & Co. are made a party defendant by summons, but have failed to make answer or defense. The court, in entering judgment, recites the facts in substance as stated, and proceeds to declare the deed made to the plaintiff by the mortgagees ineffectual to divest or defeat the defendant's equitable right to redeem, and that the trusts of the mortgage follow and adhere to the transferred legal estate in the land, and directed a general account to be taken of the mortgage liabilities between the original parties thereto by the clerk, with the value of the engine and machinery, to the end that it be applied to the secured indebtedness, with leave to said W F Kornegay & Co., consisting of W. F. Kornegay & C. Dewey, partners, to file their answer within 30 days thereafter, if so advised, and that the cause be retained for further proceedings. The plaintiff excepted to the said judgment, and assigned, as grounds of exception: (1) That his honor has found as a fact that James T. Le Grand, at the sale of the land, acted as agent of the plaintiff, W. A. Gibson, whereas, upon the evidence, his honor ought to have found, either as a conclusion of fact or law, that Le Grand was not the agent of the plaintiff at said sale, and did not buy as his agent, there being no evidence of said alleged agency. (2) That his honor has found that the defendant Barber was at the sale, but did not have notice or knowledge that Le Grand was bidding for the plaintiff, there being no evidence upon which to base said finding. (3) That his honor has failed to find that the defendant Hugh A. Barber made no objection to the sale, though he was present at the sale, and had the opportunity; all of the evidence being that he made no objection. (4) That his honor has failed to find the rental value of the land, all of the evidence showing that it was between $40 and $50 per year. (5) That he has not found that the plaintiff was the owner and entitled to the immediate possession of the land. (6) That his honor in the said judgment has not stated, separately, his conclusions of fact and law. From the judgment rendered by the court the plaintiff appealed. We proceed to examine the series of exceptions taken to the rulings of the judge, and brought up on the appeal.
First Exception. So far as the finding of the agency of the attorney rests upon the sufficiency and credibility of the testimony in establishing the fact, the finding of the judge is conclusive. If the objection be predicated upon the absence of any evidence, it cannot be sustained, for the attorney expressly states that he acted as such in the matter of selling the property.
Second Exception. The same witness states: There was no evidence that the defendant was aware of the fact that the agent, a witness for the plaintiff, knew for whom the land was bid off. This supports the finding.
Third Exception. As every fact must be found upon evidence, and there was none that the defendant had the supposed knowledge, it could not be so found.
Fourth Exception. The court does find the rental value of the land, for in the judgment, following the general statement of facts, it is declared that "the rental value of said land was $40 or $50." The exception is founded in error.
Fifth Exception. The main and really only point embodied in the fifth...
To continue reading
Request your trial