Marshville Cotton Mills Inc. v. Maslin

• Decision Date: 31 January 1928
• Docket Number: 22.
• Parties: MARSHVILLE COTTON MILLS Inc., v. MASLIN et al.
• Court: North Carolina Supreme Court

141 S.E. 348

195 N.C. 12

MARSHVILLE COTTON MILLS Inc., v. MASLIN et al.

No. 22.

Supreme Court of North Carolina

January 31, 1928

Appeal from Superior Court, Beaufort County; Midyette, Judge.

Action by the Marshville Cotton Mills, Inc., against Thomas Maslin and others. A demurrer to the amended complaint was overruled, and defendant Moore County Farms, Inc., appeals. Affirmed.

In action to foreclose deed of trust party to whom mortgaged property was conveyed held necessary party.

Small MacLean & Rodman, of Washington, N. C., for appellee.

Parrish & Deal, of Winston-Salem, for Vaughan, receiver.

BROGDEN J.

The various pleadings in the cause allege the following facts:

Prior to October, 1925, W. M. Nissen owned a certain tract of land in Beaufort county, containing approximately 1,700 acres. Moore County Farms, Inc., owned a lot on Chestnut street in Winston-Salem, upon which there was a first and second mortgage aggregating $51,000. Nissen agreed to sell the land in Beaufort county to Moore County Farms in exchange for said lot in Winston-Salem, and, as a further consideration for said lot, to deliver certain shares of stock in the Geo. E Nissen Company. The Moore County Farms agreed to pay the indebtedness of $51,000 on its lot in order that Nissen could get a clear title thereto. Failing to secure a land bank loan, Moore County Farms requested Nissen to convey the land in Beaufort county to Thomas Maslin. This was done. Being unable to secure the loan, Thomas Maslin alleged that Nissen agreed to accept a mortgage on the Beaufort county land in liquidation of the said indebtedness of $51,000 on the Winston-Salem lot. Thereupon Nissen, according to the allegations of Maslin, prepared a note for $65,000 and a deed of trust to Oscar O. Efird, trustee, upon the land to secure payment thereof. Maslin and wife executed this note and deed of trust. The note is as follows:

"$65,000.00. Winston-Salem, Forsyth County, N. C., Oct. 16, 1925. Four months after date, with interest from date until paid, payable semi-annually, we promise to pay to W. H. Maslin or order, sixty-five thousand and 00/100 dollars. For value received in money loaned. Principal and interest payable at the office of the Wachovia Bank & Trust Company, Winston-Salem, N.C. Witness our hands and seals. Thos. Maslin. Martha M. Maslin."

On October 16, W. H. Maslin, the payee in said note, duly indorsed the same to the order of W. M. Nissen. On April 17, 1926, Maslin and wife conveyed the land to Moore County Farms, subject to the said deed of trust securing the payment of said note for $65,000. On December 1, 1926, W. M. Nissen, for value, duly indorsed without recourse the said note to the plaintiff. At the time of said indorsement Nissen represented to the plaintiff that the note was a valid and subsisting obligation of Maslin and that there were no equities which could be set up against it.

The plaintiff brings a suit upon said note and for the foreclosure of said deed of trust. The suit is brought against Thomas Maslin and Martha Maslin, makers of said note. W. H. Maslin and W. M. Nissen, indorsers of said note, Oscar O. Efird, as trustee, Wachovia Bank & Trust Company, as receiver of Merchants' Bank & Trust Company, John H Dyer, trustee, N. S. Poindexter, R. L....