Holland v. Dulin

• Decision Date: 20 September 1933
• Docket Number: No. 14.,14.
• Citation: 170 S.E. 784,205 N. C. 202
• Parties: HOLLAND et al. v. DULIN et al.
• Court: North Carolina Supreme Court

170 S.E. 784

205 N. C. 202

HOLLAND et al.

v.DULIN et al.

No. 14.

Supreme Court of North Carolina.

Sept. 20, 1933.

Appeal from Superior Court, Cherokee County; Clement, Judge.

Action by E. A. Holland and others against H. L. Dulin and another. Prom the judgment, defendants appeal.

No error.

The issues submitted to the jury and their answers thereto were as follows:

"1. Did W. B. Fisher and wife Leila Fisher, receive and take title to those two tracts of land described in paragraph 4 of the complaint on or about December 5th, 1923, from S. M. Holland and wife Eliza Holland, in full payment and satisfaction of the two series of notes and the two deeds of trust totalling $2,800.00, the said deeds of trust being recorded in Book No. 74, at pages 152 and 154, respectively, of Cherokee County Registry, and did the parties to this transaction agree and intend to extinguish and cancel the indebtedness and the deeds of trust representing the indebtedness of $2,800.00 and as executed from S. M. Holland and wife to W. B. Fisher and wife? Answer: Yes.

"2. Is the defendant H. L. Dulin the holder of the Holland notes in due course, as alleged in the answer? Answer: No."

H. A. Tapp, of Knoxville, Tenn., and Edmund B. Norvell and D. Witherspoon, both of Murphy, for appellants.

Harkins, Van Winkle & Walton, of Ashe-ville, and Gray & Christopher, of Murphy, for appellees.

PER CURIAM.

We think the principal question involved is as follows: Where makers of purchase-money notes to A. for land executed duly registered deed of trust to secure same, and later convey the land to A. and wife, in full payment of the notes, can B., who took an assignment of the notes from A. after maturity, maintain the position of a holder in due course and foreclose the deed of trust as against lienors and grantees of A. and wife? We think not under the facts and circumstances of this case.

We think the plaintiffs' evidence, upon motion of nonsuit, C. S. § 567, sufficient-- also evidence tending to show lack of actual knowledge on the part of plaintiffs, who were purchasers of the land. The peremptory instruction by the court below that there was no evidence that the defendant Dulin wasthe holder of the Holland notes given to Fisher in due course was correct. To be sure, Fisher had transferred the notes in due course as collateral to secure an indebtedness he owed to Anderson-Dulin-Varnell Company. Fisher, after the maturity of these notes, paid the indebtedness due by him to Anderson-Dulin-Varnell...