Gordon v. Avery

• Decision Date: 22 April 1889
• Citation: 9 S.E. 486,102 N.C. 532
• Parties: GORDON et al. v. AVERY et al.
• Court: North Carolina Supreme Court

9 S.E. 486

102 N.C. 532

GORDON et al. v. AVERY et al.

Supreme Court of North Carolina

April 22, 1889

Appeal from superior court, Burke county; ARMFIELD, Judge.

Mortgage foreclosure by Theodore Gordon and others against M. C Avery, Austin Collett and wife, and Rufus Avery. Defendants appeal.

Where a defendant in a suit to foreclose a mortgage alleges, and plaintiff denies, facts giving him a prior right, the issue should be submitted to the jury.

C. M Busbee, Batchelor & Devereux, and J. T. Perkins, for appellants.

S. J Ervin, for appellee.

MERRIMON J.

The following is a copy of the material parts of the case settled on appeal:

"Plaintiffs bring suit for the foreclosure of a mortgage dated the 21st of July, 1887, to secure the sum of $253.90, a part of which sum, to-wit, $129, had been secured by a former mortgage, dated the 30th day of October, 1885. That said mortgages were given by the defendant Austin Collett, who claimed an interest in the land therein described under the following writings: 'Collett boundary. Beginning at a stake on Grant's corner, and running north with the Rocky Ford road to Tate's line; then west with Tate's line 18 poles, to a stake in Tate's line; then southward to Grant's black oak, and then with said line to beginning; containing 1 1/4 acres more or less.' On the same piece of paper on same side, is the following: 'Received of Austin Collett $33 in part payment on a lot on Rocky Ford road, October 27th, 1885. M. C. AVERY.' On the opposite side of the same piece of paper is the following: 'Austin Collett, promise to pay Mrs. M. C. Avery 53 dollars on a lot adjoining W. Grant's, on the Rocky Ford road, by the 1st of March, 1886. [Signed] AUSTIN COLLETT. Balance due, $20, at 8 per cent. interest.' It further appears from the complaint that at the time said mortgages were executed by said Collett the legal title to said land was in the defendant M. C. Avery.

"Defendant M. C. Avery demurs to the complaint, and, among other causes of demurrer, sets up the statute of frauds. His honor sustains the demurrer as to her, but does not dismiss the action. Defendants except. Defendant Rufus Avery demurs ore tenus for the causes assigned in the demurrer of M. C. Avery. Demurrer overruled, and defendants except. Defendant Rufus Avery answers, and sets up the statute of frauds, and further, that the said Austin Collett was justly indebted to him, and had given him his note on the 1st of April, 1885, for the sum of $150, same being seven months prior to plaintiffs' first mortgage, and more than two years before the second mortgage, and that said indebtedness has been greatly increased since that time by his letting said defendant have money and goods. Defendant Rufus Avery further pleaded that he had paid the purchase money. His honor held that the statute of frauds had no application, by reason of the admission in the answer. Defendants excepted.

"The following issue was submitted to the jury: 'Did defendant Rufus Avery become bound for the purchase money of the land prior to the execution of plaintiffs' mortgage?' The defendant Rufus Avery testified that he paid to M. C. Avery the purchase money of the land under the following circumstances: That he had, as agent of M. C. Avery, made a parol contract with Austin Collett to sell him the land, but with the express understanding that if the purchase money, amounting to $50 and interest, was not paid by the 1st of March, 1888, then said contract was to be void, and said Collett was to forfeit his improvements. That said Collett was not able to pay at the time appointed, and told witness if he would satisfy M. C. Avery for the purchase money, and give him a little more time, he would give him his note for $150, and the land should stand good for it, and, if not paid by the year 1888, that he should have the said land. That, on the strength of this assurance, witness did satisfy M. C. Avery by paying the purchase money, and, Collett having failed to pay by 1888, under Collett's direction M. C. Avery made him a deed for a part of the land, the other having been sold to one S. J. Ervin, and thereupon his honor withdrew the issue which he had at first submitted, and substituted the following 'Is the lien of plaintiffs' mortgage on the land in question superior to the rights and equities of defendant Rufus Avery, as set up in the answer? What amount is defendant Collett indebted to plaintiffs?' Defendants excepted to the withdrawing of the issue first submitted and the submission of the last two to the jury. There was no evidence offered by plaintiffs to show that the receipt for $33 was for the same land as that included in 'Collett's boundary,' or that it was for any land, the word 'lot' only being used in said receipt. And thereupon his honor instructed the jury that upon the evidence--taking the evidence of Rufus Avery to be true--they must find the issue as to the superiority of the lien in favor of plaintiffs. To which instructions defendants excepted.

"On judgment being rendered, defendants appeal to the supreme court."

The appellants contend that the plaintiffs obtained no title to the land in question, nor any interest therein by the deed of mortgage under which they claim, executed to them by the appellants Collett and wife, because the latter had no title to, nor any interest in, that land that they could convey that the husband, Collett, had but a parol contract with M. C. Avery, who had the title to it, whereby she contracted to convey the title to him when he should pay the purchase money he agreed to pay her for the same, and he had not paid such purchase money or any part thereof; and they pleaded that such parol contract was void under the statute of frauds, because no memorandum or note thereof was put...