Hall v. Lewis

• Decision Date: 25 March 1896
• Citation: 24 S.E. 209,118 N.C. 509
• Parties: HALL. v. LEWIS.
• Court: North Carolina Supreme Court

24 S.E. 209

118 N.C. 509

HALL.

v.LEWIS.

Supreme Court of North Carolina.

March 25, 1896.

Action to Declare Deed a Mortgage — Complaint and Evidence—Sufficiency—Appeal—Harmless Error.

1. In an action to declare a deed a mortgage, the evidence for plaintiff was that defendant offered to take up a mortgage on the land, on which there was $80.42 due, and to hold it until plaintiff could pay him: that for convenience a deed was given, and the consideration stated as $125, without plaintiff's knowledge; that plaintiff and his wife could not read, and it was not read to them; that after his wife had signed it she asked the justice who took her acknowledgment how much was still due on the land, and he told her that her husband had told him "about $80"; and that plaintiff continued to live on the land, and make a crop. There was a verdict for plaintiff. Held, that a motion for a judgment for defendant non obstante veredicto was properly denied, though the complaint did not allege that the condition and clause of defeasance were "omitted by fraud, inadvertence, or mistake."

2. Defendant offered evidence to show that he had put valuable improvements on the land, and the court, in ruling it out, remarked that "a mortgagee was not entitled to anything for improvements he put on the land." He also stated that he should charge the jury "that, if they believed defendant's testimony, construed and taken in connection with that offered by plaintiff, then they should find the said deed, though absolute on its face, was intended as a mortgage." Held, that the remarks of the court, if erroneous, were harmless, defendant admitting that he, at the request of plaintiff, paid the original mortgagee $80.42, and had the mortgage and debt assigned to him.

Appeal from superior court of Sampson county; Graham, Judge.

Action by Albert Hall against A. E. Lewis to declare a deed, absolute on its face, a mortgage. From a judgment for plaintiff, defendant appeals. Affirmed.

J. L. Stewart, for appellant.

J. D. Kerr, for appellee.

FURCHES, J. The evidence in this case creates a strong impression upon the minds of the court of palpable fraud on the part of defendant, from which a court of equity should give relief. After the verdict of the jury, the defendant moved for judgment non obstante veredicto, for the reason that the complaint did not state a cause of action, in that it did not allege that the condition and clause of defeasance in his deed were "omitted by fraud, inadvertence, or mistake, " and cites Norris v. McLam, 104 N. C. 159, 10 S. E. 140, for this position. We do not admit that fraud is not alleged in the complaint, and therefore it does not become our duty to consider whether Norris v. McLam, supra, was put on the first principles of equity or not. It is true that the general rule is that there should be allegata as well as probata. But this is a rule of practice, and the question is whether this rule of practice would not give way to that great principle of equity that will enforce the specific performance of contracts where the contract is not denied. A parol contract for the sale of land will be enforced if it is not denied. Bonham v. Craig, 80 N. C. 230. If it is denied, it cannot be proved under the statute of frauds, and of course cannot be enforced. But this is because the contract is denied, and cannot be proved. Then, to take this complaint as upon demurrer, why should it not be enforced? A demurrer admits the facts, and defendant's motion must be put on the same ground. But if we take it in connection with the evidence of the plaintiff, it appears that the defendant agreed to take up the mortgage of the Clinton Loan Association, on which there was only $80.42 due, and to hold it until he could pay him; that defendant said to plaintiff that he would not take a mortgage from plaintiff to secure him, but would take a deed, which would be...