John Arrington & Sons v. Jenkins

• Decision Date: 31 October 1886
• Court: North Carolina Supreme Court
• Parties: JOHN ARRINGTON & SONS and JOSEPH BEAVANS v. JOSEPH W. JENKINS and JOHN GOODRICH and wife.

95 N.C. 462

JOHN ARRINGTON & SONS and JOSEPH BEAVANS

v.JOSEPH W. JENKINS and JOHN GOODRICH and wife.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

This was a CIVIL ACTION, tried before Shepherd, Judge, at Spring Term, 1886, of HALIFAX Superior Court.

The defendants, John Goodrich and wife Elizabeth, on the 31st day of January, 1873, by mortgage deed conveyed certain lands and personal property therein specified, to the plaintiff, John Beavans, to secure a loan of money, not exceeding $3,200 in amount, and to be advanced during the month of February, with condition to be void if the said sum, with interest at eight per cent. per annum, was paid on or before the 1st day of February of the next year. The note of the mortgagor for that amount, with the specified rate of interest, was taken on the next day after the execution of the mortgage, and during the month of its date the the full amount of the loan was paid to him. The other plaintiffs, Arrington & Sons, recovered several judgments against the defendant Goodrich, whose aggregate principals are $358.66, besides interests and costs, before a justice of the peace, and on the 19th day of March, 1879, caused them to be docketed in the Superior Court of Halifax.

On April 14th, 1880, the defendant Goodrich, to obtain needed supplies for his farming operations during the year, executed a deed to the defendant Jenkins, whereby, to secure the repayment of advances not exceeding $600, and to be made in equal parts in moneys and goods, he gave a lien upon the crops raised on the land to be cultivated, stock and farming implements.

He also conveyed therein a tract of land on which he was then residing, and other personal property, with condition, (applicable also to the crops, stock and farming implements), to be void if the advances, with interest, commissions and liquidated damages, as provided in a preceding section of the deed, were paid on or before the first day of December following. The section referred to, and intermediate between the operative conveying words, is in these words:

“And the said John Goodrich, for and in consideration of the matters aforesaid, does covenant and agree to ship to the said Joseph W. Jenkins & Co., for sale as commission merchants, double the quantity of cotton necessary to pay the advances aforesaid, with interest at the rate of eight per cent. per annum, and commissions 2 1/2 per cent., and in case of failure so to ship, to pay Joseph W. Jenkins & Co., 2 1/2 per cent. on the value of the amount failed to be shipped as aforesaid as liquidated damages for breach of this covenant.”

Two successive deeds were executed by the said Goodrich to Jenkins, one on May 10th, 1881, and the other on February 17th, 1882, to which latter his wife was a party, with the same general provisions, and conveying liens on the crops of the respective years, as well as other personal and real estate, to secure further advances and the unpaid residue of the indebtedness claimed for each antecedent year, and with power of sale in all, if the secured debts and advances were not paid by or before the 1st day of December of the several years.

The present action is for the ascertainment of the remaining indebtedness of the said Goodrich to the several creditors, secured under the mortgages and judgment lien upon the conveyed real estate, and for a sale thereof, and distribution of the proceeds in payment, according to their priorities.

Answers were put in by the defendants, and thereupon the cause was referred to W. A. Dunn and Gavin L. Hyman, commissioners, with directions “to ascertain and report the amounts due by the defendant John Goodrich” to the plaintiff Beavans, and to the defendant Jenkins.

The report was accordingly made at Fall Term, 1885, with the evidence taken before the commissioners, and their separate findings of fact and law therefrom. From the report it appeared that $2,465 04/100 was due said Beavans on November, 16th, 1885, with interest thence on $1,588 76/100 principal money, at the rate of eight per cent. per annum, and that there was due said Jenkins on August 31st, 1883, the sum of $216 23/100, with like interest thereafter to accrue.

To the commissioners' report, the defendant Jenkins filed many exceptions, twenty-three to their findings of fact, and six to their findings of law. Upon the hearing before the Court, it was conceded by all parties that the plaintiffs were entitled to the amounts ascertained and reported to be due them respectively, and to judgment therefor, the defendant Goodrich only objecting to a decree for the sale of the land until the indebtedness to Jenkins was also fixed. Thereupon the Court proceeded to try the whole case. The same defendant excepted to the finding, in including in the note given in March, 1881, a balance from the year 1879, which he insisted had been paid, and if not paid, was not embraced in the note for which the last mortgage was given.

The said Jenkins, waiving all his exceptions to the findings of fact, in regard to the rulings of the commissioner upon matters of law, except to their having considered any evidence tending to show the consideration or to impeach the legality of the notes.

The Court overruled the exception and said defendant excepted.

4. Said defendant also excepted to the finding of the referees as to usury, for that there was no sufficient evidence of usurious intent.

The Court overruled the exception and said defendant excepted.

The Court sustained the conclusion of the referees except that interest should be allowed only from the date of the judgment.

To this ruling the defendant Jenkins excepted.

The bond was fixed at seventy-five dollars.

The defendant Jenkins excepted to that part of the judgment which taxed him and defendant Goodrich with the referee's fees and court costs.

Mr. Spier Whitaker, for the plaintiffs .

Mr. John Devereux, Jr., ( Messrs. Thos. N. Hill and Jos. B. Batchelor, were with him), for the defendant

Jenkins.

No counsel for the defendants Goodrich and wife.

SMITH, C. J. (after stating the case).

The exceptions of Jenkins will be first considered.

Exception I. It was competent for the debtor to show that usurious interest entered into the consideration, and constitutes part of the amount for which the notes were given. It was to an inquiry made to ascertain the tainting presence of this illegality in the security, to which we...