Justice v. Coxe

• Decision Date: 22 January 1930
• Docket Number: 590.
• Citation: 151 S.E. 252,198 N.C. 263
• Parties: JUSTICE v. COXE.
• Court: North Carolina Supreme Court

151 S.E. 252

198 N.C. 263

JUSTICE v. COXE.

No. 590.

Supreme Court of North Carolina

January 22, 1930

Appeal from Superior Court, Buncombe County; Schenck, Judge.

Action by Clara F. Justice against Tench C. Coxe, Jr. Judgment for defendant, and plaintiff appeals. No error.

Defendant taking land under agreement to transfer it to third persons took bare legal title, third persons being equitable owners.

Action to recover the balance due on notes executed by defendant and payable to plaintiff or her order. The consideration for said notes, as alleged in the complaint, was part of the purchase price for land conveyed to defendant by plaintiff, the remainder of said purchase price having been paid to plaintiff, at the date of the conveyance by her of said land. The notes were secured by a deed of trust on said land; this deed of trust was also executed by defendant. Upon default in the payment of said notes, the deed of trust was foreclosed by the sale of the land conveyed thereby. The net proceeds of said sale were applied as payments on said notes leaving a balance due thereon of $3,223.35. Plaintiff prays judgment that she recover of the defendant the said sum of $3,223.35, with interest and costs.

In his answer, defendant admitted the execution by him of the notes sued on. He alleges, however, that he received no consideration for said notes, for that, pursuant to the terms of an agreement made by and between plaintiff and defendant, contemporaneously with the conveyance of the land to him by the plaintiff, and with the execution of said notes by him, he subsequently conveyed the land which plaintiff had conveyed to him to George W. Knight, Edward Higgins, and Samuel Puleston, who assumed the payment of said notes in accordance with the terms of said agreement. Defendant contends that, having performed his agreement with plaintiff, by its terms he was discharged of liability to plaintiff on said notes. He prays judgment that plaintiff take nothing by her action, and that he go hence without day, and recover his costs of the plaintiff.

At the trial defendant offered evidence tending to sustain the allegations of his answer. There was evidence tending to show that the land was conveyed by plaintiff to defendant, and that the notes sued on were executed by defendant, solely for the benefit and accommodation of plaintiff; that she had theretofore contracted in writing to sell and convey the said land to George W. Knight, Edward Higgins, and Samuel Puleston, residents of the state of Florida; that, because of their absence from this state on the day when she insisted upon performing her contract with them, they could not on said day execute the notes and deed of trust securing the same, in accordance with said contract; and that, in order to enable plaintiff to secure the cash payment on the purchase price of said land, on said day, it was agreed by and between plaintiff and defendant, with the approval of said George W. Knight, Edward Higgins, and Samuel Puleston, given to their attorneys over the telephone, that plaintiff should convey the land to defendant, and that defendant should execute the notes for the deferred payments on the purchase price, and the deed of trust securing said notes, and should thereafter, as soon as practicable, convey the land to the said George W. Knight, Edward Higgins, and Samuel Puleston, who should thereupon assume the payment of the notes. This agreement was fully performed by all the parties thereto. As the result of the manner in which the transaction was handled, plaintiff received the cash payment on the purchase price for her land, the same having been made by their attorneys in this state from funds furnished by George W. Knight, Edward Higgins, and Samuel Puleston for that purpose.

The only issue submitted to the jury was...