Martin v. Bank Of Fayetteville

• Decision Date: 14 October 1902
• Citation: 131 N.C. 121,42 S.E. 558
• Court: North Carolina Supreme Court
• Parties: MARTIN et al. v. BANK OF FAYETTEVILLE.

42 S.E. 558

131 N.C. 121

MARTIN et al.

v.BANK OF FAYETTEVILLE.

Supreme Court of North Carolina.

Oct. 14, 1902.

CONSTRUCTIVE TRUSTS—ENFORCEMENT-TENDER—WAIVER—DEMURRER ORE TENUS— PLEADING—AMENDMENT—REVIEW.

1. In an action to have a purchaser at foreclosure sale declared a trustee, and for an accounting, on the ground that the purchaser agreed to purchase and hold for complainants, the complaint alleging that complainant was ready, able, and willing to pay any balance found due on the note secured, the court had power, after a demurrer ore tenus had been interposed at the trial after answer on the ground that the complainants had failed to tender the amount due, to permit an amendment of the complaint so as to allege a waiver of the tender.

2. Since the defendant had answered the complaint, and denied the truth of the facts alleged therein, the amendment was not such as to cause surprise, nor to mislead defendant, and hence it was error for the court to refuse it.

3. Where a court refused to allow an amendment of a complaint on the erroneous ground that it had no power to allow it, such refusal is reviewable on appeal, though rulings granting or refusing amendments in general are discretionary, and not reviewable.

4. Where, in an action to have the purchaser at a mortgage foreclosure sale declared a trustee for the mortgagor, defendant answered, denying any agreement to hold for the plaintiff, claimed ownership of the land, and denied that payments made were to be applied on the debt, such answer, interposed before a demurrer ore tenus on the ground that the complaint did not allege a tender of the amount due, constituted a waiver of the tender, since it showed that a tender, if made, would not have been accepted.

Appeal from superior court, Cumberland county; Robinson, Judge.

Action by J. P. Martin and others against the Bank of Fayetteville. Judgment for defendant, and plaintiffs appeal. Reversed.

D. T. Oates and Busbee & Busbee, for appellants.

R. T. & R. L. Gray, for appellee.

FURCHES, C. J. The plaintiffs executed a note to I. Luther for $1,700, which he indorsed for plaintiffs (as we suppose, though the case does not say so), and they had it negotiated at the Bank of Fayetteville. This, we think, is shown from the fact that the note was made to Luther, indorsed by him, was negotiated at the bank, and plaintiffs made a mortgage to Luther to secure him as such indorser. The plaintiffs paid the interest on the note until about 1889 or 1890, when Luther, as mortgagee, sold the land, and the defendant bank became the purchaser at the price of $1,500, and Luthermade the bank a deed for the land so sold. And since said sale the plaintiffs have paid the bank at different times something over $2,100, according to their allegations, which they say was paid on said note, under an arrangement with the bank, or Mr. Williams, its president, that he would buy the land, and hold it for plaintiffs until they could pay and satisfy the note. While the defendant does not deny the payments, it alleges that they were made as rents for use and occupation of the land, which belonged to the defendant, and not as payments on the note. The purpose of this action is to have the defendant declared a trustee, and for an account, alleging that they are able, ready, and willing to pay the defendant any balance that may be found to be due on said note. But after the defendant had answered the complaint, and denied that plaintiffs had any interest in said land, claiming that it belonged to the defendant, and that the plaintiffs were its tenants, and that the payments they had made were rents, —after answering, and setting up this defense, —when the case was called for trial it interposed a demurrer ore tenus that the plaintiffs had not made the defendant a tender of what was due on the note before bringing suit; whereupon the plaintiffs asked permission of the court to amend the complaint by alleging that plaintiffs' attorney, before the action was commenced, went to see the defendant for the purpose of ascertaining...