Joines v. Johnson

• Decision Date: 24 November 1903
• Citation: 45 S.E. 828,133 N.C. 487
• Parties: JOINES v. JOHNSON et al.
• Court: North Carolina Supreme Court

45 S.E. 828

133 N.C. 487

JOINES v. JOHNSON et al.

Supreme Court of North Carolina

November 24, 1903

Appeal from Superior Court, Wilkes County; Neal, Judge.

Action by W. Joines against H. Johnson and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Where plaintiff contracts to convey land to defendant, or to see that a third person conveys it, an indorsement by such third person on a deed of the premises to him, reciting that for value received he conveys to defendant all the right and title vested in him by the deed, with his acknowledgment, is not a conveyance within the contract.

T. B Finley, for appellants.

WALKER J.

This action was brought to recover the amount of a note, and to foreclose a mortgage given to secure its payment. The plaintiff alleged in his complaint that on August 30, 1894 the defendants made and delivered to him a note under seal for the sum of $100, due August 1, 1896, and to secure its payment they executed a mortgage upon the land therein described, and that no part of the note has been paid. He therefore demands judgment for the amount of the note, and for the foreclosure of the mortgage. The defendants, in their answer, deny the execution of the note, but admit the execution of the mortgage, and aver that it was given upon the condition that the plaintiff should make them a deed for one of the tracts of land described in the mortgage, which contains 20 acres. The plaintiff refused to make the deed and, upon demand, refused also to return the mortgage. The plaintiff introduced evidence which tended to show that the defendants executed the note and mortgage, and that no part of the note had been paid; that on or about August 30, 1894 plaintiff contracted to sell and did sell and convey a tract of land to one E. L. Billings, and, as part payment of the purchase money, he agreed to accept, and the defendants agreed to give their note, secured by the mortgage, in the sum of $100, Billings having agreed for that amount to sell to the defendants a tract of land, the title to which was then in Billings; and that plaintiff, who was a justice of the peace, wrote on the back of the deed to Billings the following transfer: "For value received of Hardin Johnson, I convey to him all the right and title vested in me by virtue of the within deed. August 1, 1894. E. L. Billings [Seal.] T. J. Billings. [ Seal.]" The plaintiff, as a justice of the peace, then took the acknowledgment of Billings and his wife, and the privy examination of Mrs. Billings. There was no agreement that plaintiff should make the defendants a deed, or that he should see that Billings made the deed to them for the land. The deed, with the indorsement thereon, was delivered to the defendants in the plaintiff's presence, the parties believing at the time that the written transfer was sufficient to pass the title to the defendants. Billings has never paid to the plaintiff anything for the land. When the plaintiff proposed to introduce the deed to Billings, and the indorsement thereon written by himself, together with the acknowledgment and privy examination, the defendants objected, and, the objection being overruled and the papers admitted, the defendants excepted on the following grounds: "(1) That said indorsement was not a deed, and could not be held a sufficient consideration for the execution of the note and mortgage; (2) that the acknowledgment and privy examination were invalid because the plaintiff was interested in the transaction." The defendants introduced evidence tending to show that they did not execute the note, but that they did execute the mortgage, and that in consideration thereof Billings agreed to execute, and the plaintiff agreed to see that Billings did execute, to the defendant Hardin Johnson, a good and sufficient deed, with covenant of warranty for the land that the defendants had bought from Billings, which contained 20 acres, and that neither the plaintiff nor Billings had complied with the agreement. The defendants' witness E. L. Billings testified that he had agreed to make to the defendants a deed for the 20-acre tract, and thought that he had done so by the delivery of the deed from the plaintiff to him, and the written transfer and probate which are on the back of the deed; that, if it is not a good deed, he is still willing to make one that will be valid and sufficient to transfer the title to the defendant. By consent of the parties, issues were submitted to the jury by the court, which, with the answers thereto, are as follows: "(1) Did the defendant execute to the plaintiff the note sued on in this action? Yes. (2) If the defendant executed said note, in what amount is he indebted to the plaintiff? $103.61, without interest." The court charged the jury that if they found by the greater weight of evidence that the plaintiff agreed to convey the land to the defendants, or that he would see that Billings conveyed it, and that the defendants had not received a good title to the same, they should answer the second issue, "Nothing;" that the indorsement on the deed, with the acknowledgment and privy examination, did not constitute a conveyance, but was only such a contract or covenant as could be enforced by the...