Grandy v. Abbott

• Decision Date: 28 February 1885
• Citation: 92 N.C. 33
• Court: North Carolina Supreme Court
• Parties: T. T. GRANDY v. J. K. ABBOTT and others.

92 N.C. 33

T. T. GRANDY

v.J. K. ABBOTT and others.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION, tried at Spring Term, 1884, of Superior Court for CAMDEN county, before Gudger, J.

The facts are stated in the opinion of the Court.

Verdict and judgment for defendants, from which plaintiff appealed.

Messrs. Gatling & Whitaker and Pruden & Vann, for plaintiff .

Messrs. Grandy & Aydlett, Fuller & Snow and E. C. Smith, for defendants .

SMITH, C. J.:

William K. Abbott, the testator of the defendants, John R. Abbott and Alfred Abbott, being largely in debt to the plaintiff, and under an arrangement for compromise, on March 1st, 1867, executed to him a note under seal in the sum of $4,537.40 payable in equal parts in the three years next ensuing with interest from date, and to secure the same and certain other debts therein recited, by deed made on the same day, conveyed a valuable tract of land to William F. Martin, with the usual provisions for sale in case of default. Among the debts thus secured is one due the trustee himself. Some payments have been made by the testator which are endorsed as credits on the plaintiff's note. The trustee died in January, 1880, and Abbott, the debtor, in September or October of the following year, each leaving a will. Their executors and devisees, with C. M. Wood, are defendants in the present action, the object of which is to recover judgment for the residue claimed to be due the plaintiff on said note, and for a foreclosure and sale of the land in order to its discharge. The other secured debts have been paid, as is admitted in the pleadings. The executors of the debtor have possession of the note and their defence is that it was paid by the testator in his life-time to the trustee, who as the plaintiff's attorney, had the note in his hands for collection and surrendered it to the debtor.

The sole controversy, as the case is presented in the appeal, is as to the truth of this allegation in defence, and it was embodied in an issue submitted to the jury followed by an affirmative finding. Thereupon judgment was rendered for the defendant, and the plaintiff appealed. Upon trial, testimony was offered by the defendant's executors, which the plaintiff admitted to be true, that the said W. F. Martin, at the request of the testator, W. R. Abbott, effected a loan and borrowed from the defendant, C. M. Wood, a sum of money for the purpose of paying and more than sufficient to pay, the debt due the plaintiff, and now in suit: that the note under seal dated on July 1, 1879, executed to C. M. Wood and secured by a conveyance of the same land to the same trustee and upon similar trusts, was for the money to be used in payment of the plaintiff's debt. The former note bears an endorsement dated July 1, 1879, by the said Martin, acting for and in the name of the plaintiff, to the lender, but it did not leave his possession.

Sometime in October the testator came to the office of said Martin, who directed the witness, his son, to get the note from the safe and hand it to Abbott, remarking that he had received money enough to pay it and some other notes.

The deed of July 1, 1879, which secures the larger note given for money borrowed of C. M. Wood, was proved and admitted to registration on October 4th of that year. Annexed is an exhibit C, with the signature of said Abbott alone, in these words:

“This trust is made as a renewal of the trust to Wm. F. Martin, dated March 1, 1867, Mrs. Wood having advanced the money to take up the notes secured in trust of March 1, 1867, or so much as was due on same, except the notes payable to D. Pritchard, Matchet Taylor, which have been paid by me and said notes and trusts assigned to Mrs. Wood and to be held by her to be good and valid until the note secured in this is paid, when both trusts are to be cancelled and notes surrendered. Witness my hand and seal this July 1st, 1879.

WM. R. ABBOTT, ( Seal).

Witness, R. B. MARTIN.”

The introduction in evidence of the deed in trust, and this appended part, which were registered as one instrument, was allowed, after objection, and this is the subject of the first exception of the plaintiff.

Aside from the competency of the deed as evidence of its own existence against all persons, while its recitals are evidence only against parties and privies, as held in Claywell v. McGimpsey, 4 Dev. 89, the deed is referred to in the complaint and its material provisions set out with the superadded words “as in and by said deed, or a certified copy thereof to which the plaintiff craves leave to refer for the particulars thereof, when produced will appear.”

The production of the deed, when its contents are thus introduced in the...