Joyner v. Stancill

• Decision Date: 24 February 1891
• Citation: 12 S.E. 912,108 N.C. 153
• Parties: JOYNER et al. v. STANCILL.
• Court: North Carolina Supreme Court

12 S.E. 912

108 N.C. 153

JOYNER et al. v. STANCILL.

Supreme Court of North Carolina

February 24, 1891

Appeal from superior court, Pitt county.

Where a debt evidenced by a note secured by a mortgage is included in a new note given for all past indebtedness between the parties, and intended as a discharge and satisfaction of the debts included in it, the mortgage is thereby released.

James E. Moore and J. D. Murphy, for appellant.

Batchelor & Devereux and Latham & Skinner, for appellee.

SHEPHERD J.

In the well-considered case of Battle v. Mayo, 102 N.C 413, 9 S.E. Rep. 384, it was held that, where there is a reference by consent, the findings of fact by the referee adopted by the trial judge, are final, and will not be reviewed here. It was also distinctly held that, while we will pass upon the question whether there is any evidence to sustain such findings, the exceptions in this respect must be taken below, and will not be heard for the first time in this court. There being no such exceptions in the present case the report of the referee, as approved by the judge, is conclusive, and we can only review the findings of law. The only exception insisted upon is addressed to the findings of law that "the note to Rountree & Co. was by the transactions between the said Atkinson and the defendant released and discharged, and the security thereunder lost." The foregoing legal conclusion is based upon the following finding of facts by the referee: "I find that on the 28th day of February, 1882, said B. S. Atkinson was indebted to said G. A. Stancill in the amount of the note assigned to him and various other amounts by note or account and that on said day the said Atkinson and defendant came to a settlement and ascertainment of the debts due from Atkinson to defendant Stancill, and on that day said Atkinson executed his promissory note under seal, payable to Stancill, for amount of $2,119 11, which amount included the amount of the Rountree note, with interest to that date, and some additional amounts due Stancill on account of his (Stancill's) tenant, for which he became responsible. I find that defendant, G. A. Stancill, accepted said note in full satisfaction of and in discharge of said Rountree & Co. note and other indebtedness, and from that time until now he has used said note as collateral, and has treated it as a discharge of pre-existing securities." It is well settled that a mortgage may be...