Jenkins v. Wilkinson

• Decision Date: 19 December 1893
• Citation: 18 S.E. 696,113 N.C. 532
• Court: North Carolina Supreme Court
• Parties: JENKINS . v. WILKINSON et al.

18 S.E. 696

113 N.C. 532

JENKINS .

v.WILKINSON et al.

Supreme Court of North Carolina.

Dec. 19, 1893.

Notes— Transfer —Moktgages —Limitation of Action—Parties.

1. A note may be transferred by delivery and without indorsement, (Code, § 177,) and, though such transfer does not pass the legal title according to the law merchant, the transferee is the equitable assignee thereof.

2. The transfer of a note carries with it a mortgage given to secure it, without any formal assignment or delivery, or even mention, of the mortgage.

3. The lien created by a mortgage given to secure a note is not impaired by the fact that the statute of limitations has run against the note.

4. Where a note is given and a mortgage transferred as collateral to the cashier of a banking firm for the benefit of the firm, he holds the collateral as trustee for the firm, and, under Code, § 179, an action to foreclose the mortgage is properly brought in his own name.

Appeal from superior court, Lincoln county; Armfield. Judge.

Action by L. L. Jenkins, cashier, against L. A. H. Wilkinson and others, to foreclose a mortgage. From a judgment for plaintiff, defendants appeal. Affirmed.

It was in evidence that on the 5th day of January, 1888. the defendant L. A. H. Wilkinson executed a note to the plaintiff in the sum of $800, bearing interest after maturity, and that M. A. Wilkinson indorsed the said note, and became surety therefor. It was in evidence that at the time the $800 note was executed, and at the time M. A. Wilkinson indorsed it, the defendant M. A. Wilkinson placed in the hands of the plaintiff the $900 note and mortgage set forth in the pleadings as collateral security for the payment of the $800 note, and thereupon the plaintiff paid over to the defendant L. A. H. Wilkinson the money.

First. When the plaintiff offered to show that the $900 note and mortgage were placed in his hands as collateral security, and were a part of the same transaction as the execution of the $800 note, the defendants excepted. Exception overruled. Evidence allowed by the court.

Second. It was in evidence that the defendant L. A. H. Wilkinson was sued on the $800 note at the fall term, 1890, of Gaston court, a"nd that judgment was obtained for $752 and costs, which said judgment has never been paid.

Third. As will appear in the pleadings, the $900 note and mortgage placed by M. A. Wilkinson as collateral in the hands of the plaintiff was executed by L. A. H. Wilkinson and wife, the principals in the $800 note.

Fourth. It was in evidence that the $800 note belonged to a banking firm by the name of Craig it Jenkins, and that the plaintiff, to whom the note was made payable, was cashier of the firm at that time.

Fifth. It was in evidence that no suit had been brought against M. A. Wilkinson except the present, and that no relief has been asked as against him except the foreclosure of this mortgage, as the $900 note and mortgage in question were executed to M. A. Wilkinson by L. A. H. Wilkinson and wife.

Sixth. It was in evidence that there was no written transfer of the $900 note and mortgage to plaintiff, but at the time it was given him it was stated that it should be held as collateral security for the payment of the $800 note given by L. A. H. Wilkinson, and indorsed by M. A. Wilkinson at the same time.

His honor submitted the following issues to the jury, to wit: (1) "Did L. A. H. Wilkinson and Nannie Wilkinson make and deliver to M. A. Wilkinson the $900 note and mortgage described in complaint? Ans. Yes." (2) "Did M. A. Wilkinson deliver the $900 note and mortgage to the plaintiff to hold as collateral security for the payment of the $800 note on which judgment was obtained? Ans. Yes." (3) "Is plaintiff's action barred by statute of limitations? Ans. No." The defendant tendered the following issues, which were not submitted to the jury by the court, to which defendants except: (1) "To whom was the money loaned?" (2) "Is this action barred by the statute of limitations as to the indorsement on the note given by L. A. H. Wilkinson?" (3) "Was there any writing passed between M. A. Wilkinson at the time of this loan as to the note and mortgage?" Defendants contend that, inasmuch as there was no written assignment of the note and mortgage to plaintiff, nor any stipulation in said mortgage that it was made to secure the note to plaintiff, the plaintiff could not be subrogated to the rights of defendant M. A. Wilkinson; that a mere verbal transfer from the mortgagee to the plaintiff, and no judgment had against the mortgagee, would not authorize the...