Martin v. McNeely

• Decision Date: 17 December 1888
• Citation: 8 S.E. 231,101 N.C. 634
• Parties: MARTIN v. McNEELY et ux.
• Court: North Carolina Supreme Court

8 S.E. 231

101 N.C. 634

MARTIN v. McNEELY et ux.

Supreme Court of North Carolina

December 17, 1888

Appeal from superior court, Burke county; CLARK, J.

Action by John R. Martin against J C. McNeely and wife, to recover the amount of a note secured by mortgage, possession of the land, and for sale thereof under decree of foreclosure. Judgment for plaintiff. Defendant McNeely appeals.

I. T Avery, for appellant.

S. J Ervin, for appellee.

SMITH C.J.

The defendants, J. C. McNeely and wife, Naomi, on February 5 1885, executed a mortgage deed to the plaintiff, John R Martin, whereby they conveyed to him three several tracts of land, in trust to secure the single bond on the same day made by the said J. C. McNeely in the sum of $1,250, due and to be paid with interest at the rate of 8 per cent. per annum from date on or before February 5, 1887. The mortgage contains the usual clause vesting in the plaintiff the power to make sale of the lands in a case of default in payment of either principal or interest after the maturity of the obligation. Such default having occurred, the plaintiff proceeded to advertise and sell the lands, at which Thomas B. Pugh and Elisha Holler became the last and highest bidders, at the price of $780, no part of which was paid, and they on November 21, 1887, assigned their bid to the plaintiff. Upon these allegations in the complaint, the plaintiff demands judgment for his debt, possession of the lands, which the defendant J. C. McNeely detains, and for the sale of the lands under a decree of foreclosure for the satisfaction of his said debt. The defendant J. C. McNeely, in answer, denies that the bond was in truth, as professing upon its face, given for money borrowed or for any indebtedness then due the plaintiff, and that the mortgage deed was made as stated in the complaint, or for the purposes therein mentioned; and as a further defense says: That one B. A. Berry, who owned the tract of land described in the mortgage as lying on Linville river, after much persuasion and representations, induced defendant J. C. McNeely to agree to purchase a one-half interest in said land at the agreed price of $1,250; that after said agreement, the said Berry persuaded and procured the defendant to agree to execute a mortgage to the plaintiff instead of to the said Berry; that when defendant objected to giving a mortgage upon his home tract of land, worth about $800, all the defendant owned, in addition to that, he agreed to purchase from Berry on Linville river, as a security for the purchase money of the said Linville tract, the said Berry promised and agreed with the defendant that, if he would not pay for said tract, he (Berry) would not let the defendant lose anything by the transaction, and especially that he would see that the defendant did not lose his homestead in any event; and that, by reason of said promise and agreement, the defendant was induced and persuaded to include his said homestead, described as tracts Nos. 2 and 3, in the mortgage; that the defendant was afterwards informed by the plaintiff that he did not pay or loan any money to said Berry, and that no money passed between them. These transactions, the defendant alleges, constitute a fraud practiced upon him, from which he is entitled to be relieved, and he avers that the plaintiff was cognizant of them all; and he demands that the mortgage, so far as it embraces the homestead lands, be declared null; and that the defendant be allowed to pay the interest on said bond in lieu of rents, and the bond itself upon such payment be canceled, and the mortgage also, and to this end an account be taken, etc. The said Berry, having been made a party at the instance of the defendant McNeely, filed his answer, in which, summarily stated, he makes this explanation of the transactions wherein he participated and are charged to be fraudulent: He says that the respondent was indebted to the plaintiff for borrowed money in a sum larger than that mentioned in the bond, and that in his negotiations with McNeely for the...