Hill v. Gettys

• Decision Date: 11 May 1904
• Citation: 47 S.E. 449,135 N.C. 373
• Court: North Carolina Supreme Court
• Parties: HILL et al. v. GETTYS et al.

47 S.E. 449

135 N.C. 373

HILL et al.

v.GETTYS et al.

Supreme Court of North Carolina.

May 11, 1904.

MORTGAGES — FRAUDULENT REPRESENTATION — ACTION TO SET ASIDE—JURY QUESTION— EQUITY—ADEQUATE REMEDY AT LAW.

1. In an action to set aside a mortgage, evidence examined, and held to present a question for the jury as to whether the mortgage was procured by the false and fraudulent representations of the mortgagee that he would take up and cancel other mortgages against the land.

2. Where the execution of a mortgage has been procured by the fraudulent representation of the mortgagee that he would take up and cancel other mortgages existing against the land, in consideration of the execution of a mortgage thereon to himself, equity will grant relief on failure of the mortgagee to discharge the obligations assumed.

3. That plaintiffs, in an action to set aside a mortgage procured by fraudulent representations, have an adequate remedy by way of defense to an action to foreclose the mortgage, will not defeat the plaintiffs' equitable remedy.

Appeal from Superior Court, Rutherford County; Jones, Judge.

Action by J. L. Hill and others against P. E. Gettys and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is a civil action, invoking the equitable power of the court to set aside a mortgage executed by the plaintiffs to the defendant C. C. Gettys, for that the same was without any consideration, and the execution thereof was procured by the false and fraudulent representations of the mortgagee. The defendant, at the close of the plaintiffs' testimony, moved the court for a judgment of nonsuit, and upon the refusal to grant the motion the defendant introduced testimony, and at the close of the entire evidence renewed his motion, which was again refused, The defendant excepted. His honor submitted the following issues to the jury: "(1) Did the defendant C. C. Gettys procure the execution of the mortgage or trust deed in controversy upon the false and fraudulent representation that he would pay off and discharge the Coxe and Gallert mortgages, or either of them, and did he fail to do so? (2) Was the mortgage or trust deed executed without consideration?" The jury responded to both issues in the affirmative, and the court, upon the verdict, rendered judgment directing the cancellation of the mortgage. The defendant appealed.

Eaves & Rucker, for appellants.

McBrayer & Justice, for appellees.

CONNOR, J. The only assignment of error in the record is the refusal of his honor to dismiss the action as upon nonsuit at the conclusion of the evidence. The testimony on behalf of the plaintiffs tended to show that W. S. Hill, Sr., the husband of the feme plaintiff, was indebted to Frank Coxe in the sum of about $85, to S. Gallert in the sum of about $55, and to the defendant P. E. Gettys in the sum of $360, subject to certain credits that said debt was tainted with usury; that the several debts were secured by mortgage on the land of W. S. Hill, Sr., who was insane; that Coxe and Gallert held mortgages of prior date to that of the defendant; that the defendant went to the house of the plaintiffs and falsely represented to them that Coxe was about to foreclose his mortgage; that if the plaintiff, the wife of said W. S. Hill, Sr., and her children, would execute to him a mortgage on the land of said Mary H. Hill for the sum of $150, he, Gettys, would take up the Coxe and Gallert mortgages and cancel the same, applying the difference between the aggregate amount thereof to the credit of his mortgage; that upon said promise or representation the plaintiffs executed the mortgage in controversy; that thereafter the defendant purchased the Coxe and Gallert mortgages, but failed and refused to cancel the same or deliver them to the plaintiffs; that no other consideration than the said representation passed to the plaintiffs for the execution of said mortgage; that W. S. Hill, Sr., died shortly thereafter, whereupon the defendant qualified as his administrator, and immediately filed a petition for...