Hicks v. Kearney

• Decision Date: 25 March 1925
• Docket Number: (No. 250.)
• Citation: 127 S.E. 205
• Court: North Carolina Supreme Court
• Parties: HICKS. v. KEARNEY et al.

127 S.E. 205

(189 N.C. 316)

HICKS.

v.KEARNEY et al.

(No. 250.)

Supreme Court of North Carolina.

March 25, 1925.

Appeal from Superior Court, Franklin County; Horton, Judge.

Suit by Edison T. Hicks, administrator, c. t. a. of W. Hal Mann, deceased, against C. B. Kearney and others. Judgment for defendants and plaintiff appeals. No error.

On October 26, 1903, W. Hal Mann executed to Mrs. M. E. Williams two promissory notes, the first for $250 payable April 25, 1905, the second for $300 payable April 25, 1906, each bearing interest from date; and to secure their payment he executed to Mrs Williams a mortgage on real property in the town of Louisburg. He failed to pay the notes, and at his request J. M. Allen advanced the money due Mrs. Williams and took her assignment of the notes and mortgage. On December 15, 1919, W. Hal Mann, in consideration of $4,000 (part cash, part in deferred payments), conveyed this mortgaged lot to C. B. Kearney, subject to certain incumbrances, and left in the hands of W. H. Ruffin, as trustee under a deed of trust executed by Kearney, purchase-money notes to the amount of $1,000 to secure the payment of said incumbrances.

Soon after the execution of the deed to Kearney, W. Hal Mann went to Florida, thence to New York, where he died in 1921, leaving a will in which he gave all his property to his niece Martha Elizabeth Conway, of Syracuse.

J. W. Mann qualified as administrator of W. Hal Mann in Franklin county on September 16, 1921, and held the position until December 11, 1923, when he resigned. About this time W. Hal Mann's will was probated in Franklin county, and thereafter Edison T. Hicks qualified as his administrator with the will annexed.

After W. Hal Mann had left the state, Allen advertised for sale the property embraced in the Williams mortgage, and C. B. Kearney, alleging that the notes and mortgage were barred by the statute of limitations, for the purpose of restraining the sale instituted an action in which the following judgment was entered at the November term of 1923:

"C. B. Kearney v. J. M. Allen, Transferee, and Mattie E. Williams, Mortgagee. This cause coming on to be heard before Hon. T. H. Calvert, judge presiding, it is now, by consent of all parties, ordered and adjudged that the plaintiff be nonsuited of his action. It is further ordered and adjudged that the restraining order heretofore issued herein be, and the same is hereby, dissolved, and that the money or securities deposited with W. H. Ruffin be applied to the payment of the note and mortgage executed by W. Hal Mann to Mattie E. Williams and assigned J. M. Allen to the extent of the balance due upon the same and the costs of this action, and that the remainder thereof be paid to the personal representative of W. Hal Mann. T. H. Calvert, Judge Presiding. W. H. Yarborough, Attorney for Defendants. C. B. Kearney, Plaintiff."

The object of the instant suit is to cancel the notes and mortgage assigned to Allen on the ground they are barred and to have the notes held by W. II. Ruffin, trustee, turned over to the plaintiff. The issues were answered as follows:

(1) Are the notes of 1903, held by the defendant J. M. Allen, barred by the ten-year statute of limitation? Answer: No.

(2) Are the notes of 1903, held by the defendant J. M. Allen, barred by the statute of limitation set out in chapter 192, Public Laws of 1923, as alleged in the reply? Answer: No.

Upon the verdict it was adjudged that the amount collected by W. H. Ruffin on the notes deposited with him be paid to the plaintiff, and that the plaintiff pay to J. M. Allen the amount of his notes, to wit, $412 with interest from December 2, 1907, less $50 paid August 30, 1915, upon surrender of said notes; the residue after payment of costs to be applied in the due course of administration. The plaintiff appealed.

T. T. Hicks & Son, of Henderson, for appellant.

W. H. Yarborough, of Louisburg, for appellees.

ADAMS, J. When the consent judgment of 1923 was rendered, the situation was this: W. Hal Mann had executed the notes and the mortgage to Mrs. Williams and had sold his equity of redemption to Kearney, who had paid a part of the purchase price and had executed certain purchase-money notes which were secured by a deed of trust. It had been agreed between them that W. H. Ruffin should hold Kearney's notes for the purchase money to the amount of $1,000 to indemnify Kearney against possible loss arising out of incumbrances on the property. The notes and the mortgage had been assigned by Mrs. Williams to Allen, who had advertised the mortgaged property for sale. Kearney in effect had assumed the debt Mann owed Allen, and Mann in effect had agreed that Kearney should be primarily liable to Allen. Under these circumstances, it was consented by the parties to the judgment that the money or securities deposited with W. H. Ruffin should be applied in payment of the remainder due on the notes and the mortgage executed by W. Hal Mann to Mrs. Williams and assigned to Allen.

The trial judge admitted the judgment in. evidence and instructed the jury as follows:

"As to the second issue, the court charges you that if you find from the evidence and by its greater weight, that prior to January 1, 1924, J. W. Mann, the duly qualified and acting administrator of W. Hal Mann, deceased, entered into an agreement with J. M. Allen and C. B. Kearney, under the terms of which the defendant J. M. Allen was allowed the amount of his notes out of the proceeds held by Ruffin, trustee, and Ruffin, trustee, authorized and directed to pay over out of said proceeds the amount of said notes, then it was not incumbent upon Allen to file an affidavit with the register of deeds under the statute of 1923, and if you so find from the evidence and by its greater weight, you will answer the second issue no. If you are not so satisfied, you will answer the issue yes."

All the exceptions discussed in the plaintiff's brief converge in an assault upon the admissibility of the judgment and upon the instruction relating to it, and the question is whether either exception relied on by the plaintiff discloses reversible error. The exceptions are based chiefly on the contention that neither W. H. Ruffin, J. W. Mann,...