Hughes v. Oliver

• Court: United States State Supreme Court of North Carolina
• Citation: 47 S.E.2d 6,228 n.c. 680
• Decision Date: 07 April 1948
• Docket Number: No. 235.,235.
• Parties: HUGHES et al. v. OLIVER. OLIVER. v. HUGHES et al.

47 S.E.2d 6
228 n.c. 680

HUGHES et al.
v.
OLIVER.
OLIVER.
v.
HUGHES et al.

No. 235.

Supreme Court of North Carolina.

April 7, 1948.

[47 S.E.2d 7]

Appeal from Superior Court, Johnston County; Henry L. Stevens, Jr., Judge.

Actions, consolidated for trial, by John W. Hughes and others against D. R. Oliver in ejectment for possession of two tracts of land, and by D. B. Oliver, trading as W. B. Oliver & Son, against John W. Hughes and others to foreclose a trust deed, from a judgment for defendant in the first action, plaintiffs appeal, and from a judgment for plaintiff in the second action, defendants appeal.

Error and remanded in the first case, and modified and affirmed in the second case.

By agreement of counsel for the respective parties in these actions, the cases were consolidated for the purpose of trial, and referred to Larry F. Wood, Esq., who was appointed by consent, as a Referee to hear the evidence, find the facts and state his conclusions of law.

Hughes et al. v. D. R. Oliver.

On 17 October, 1944, the plaintiffs, John W. Hughes and others, instituted this action in ejectment against the defendant, D. R. Oliver, alleging that in 1932 D. R. Oliver wrongfully and unlawfully entered into the possession of two tracts of land, a 70-acre tract and a 26.5-acre tract, and that the plaintiffs were and are the owners thereof and entitled to the possession of said lands.

The defendant, D. R. Oliver, filed a duly verified answer, in which he alleges that on 6 January, 1931, John W. Hughes (father of these plaintiffs) was the owner in possession of the aforesaid tracts of land, and that he executed a mortgage on the 70-

[47 S.E.2d 8]

acre tract of land, to D. B. Oliver (father of defendant), securing an indebtedness of $1,044.84, with interest, due and payable 1 January, 1932; that the mortgage was duly recorded; that the 26.5-acre tract of land was not covered by the mortgage and the defendant disclaims any interest therein; that there was default in the payment of said mortgage and that the mortgagee sold the same at public auction under the power of sale contained therein, on 4 February, 1932, at the Courthouse door in Johnston County, and that the defendant, D. R. Oliver, became the last and highest bidder thereon in the sum of $1,000.00.

The plaintiffs filed a reply, alleging that the foreclosure of the said 70-acre tract was irregular and invalid for that, among other things, D. B. Oliver, mortgagee, purchased at his own mortgage sale and subsequently conveyed said land to his son D. R. Oliver, the defendant herein.

The pleadings also contain certain allegations and denials concerning the fair and reasonable rental value of the respective tracts of land.

At the January Term, 1945, of the Superior Court of Johnston County, his Honor Luther Hamilton, Judge Presiding, signed a decree in accord with the disclaimer of the defendant, adjudging the plaintiffs to be the owners and entitled to the possession of the 26.5-acre tract of land.

D. B. Oliver v. Hughes et al.

This action was instituted on 22 December, 1944, by D. B. Oliver against the defendants, in which he seeks to foreclose a certain deed of trust, which he alleges was executed 1 January, 1927, by John W. Hughes, deceased, to the Southern Trust Company, Trustee, to secure a loan of $2,000.00, from the Virginia-Carolina Joint Stock Land Bank of Elizabeth City, N. C, and which he alleges he purchased on 1 November, 1932, for a valuable consideration, towit, $1,909.35, which sum is due and unpaid, and that he is entitled to recover the same with interest; that the original Trustor is dead and the defendants are his heirs at law, except D. R. Oliver and the Southern Trust Company, Trustee; that the lands conveyed in the deed of trust to secure the aforesaid loan are a 70-acre tract and a 26.5-acre tract; that D. R. Oliver was made a party defendant because he is now the owner of the 70-acre tract, subject to the lien of the aforesaid deed of trust.

The defendant, D. R. Oliver, filed an answer admitting the allegations of the complaint, and for a further defense says he purchased the 70-acre tract at a foreclosure sale under a second mortgage, and as owner he is entitled to have the 26.5-acre tract sold first, and only if a deficiency exists should the 70-acre tract be sold.

The Trustee filed no answer. The other defendants, as heirs at law, filed a demurrer for lack of proper parties, no administrator of John W. Hughes, deceased, being a party. However, by consent the demurrer was withdrawn and John W. Hughes, one of the defendants, was appointed administrator; the administrator filed an answer denying the material allegations of the complaint, plead laches as a bar and also the failure of the plaintiff to list the note for taxation and to pay the taxes due thereon, which answer was adopted by the other defendants.

The Referee heard both cases and filed his report, to which all parties filed exceptions. When this cause came on to be heard upon the Referee's report, it appeared that the Referee had failed to pass on the various pleas in bar or the statutes of limitations pleaded and found no facts in reference thereto, whereupon both cases were remanded to the Referee to hear such additional evidence as might be offered by the several parties and to state his findings of fact and conclusions of law with reference to said statutes of limitations and pleas in bar as set out in the pleadings in both cases. And D. R. Oliver, defendant in Hughes v. Oliver and D. B. Oliver, plaintiff in Oliver v. Hughes, were allowed ten days in which to file further pleadings setting up laches in said causes.

In the case of Hughes et al. v. Oliver, the Referee found as a fact that John W. Hughes and his heirs had not been in possession of the 70-acre tract of land since on or about 4 February, 1932, that on or about that date D. B. Oliver, mortgagee, entered into possession of the 70-acre tract

[47 S.E.2d 9]

of land and continued in possession until 12 April, 1937, the date of the execution of the alleged mortgagee's deed from D. B. Oliver to D. R. Oliver, and that on said date the said D. R. Oliver, by virtue of said deed, entered into possession thereof and has been in the continuous possession of said 70-acre tract since that time; that D. B. Oliver, mortgagee, and D. R. Oliver have been in possession of the premises for a period of more than ten years prior to the institution of this action; that John W. Hughes, the mortgagor, surrendered possession of the 70-acre tract to D. B. Oliver, mortgagee, on or about 4 February, 1932, and said mortgagor had full knowledge of the entry and possession of mortgagee until the time of his death on 29 November, 1934. The Referee found as a fact that the fair and reasonable rental value for the 26.5-acre tract of land was $100.00 per year for the three years next preceding the institution of this action. The defendant did not except to this finding of fact or to the conclusion of law based thereon.

The Referee held as a conclusion of law in his supplemental report, that the plaintiffs' cause of action was barred by the...