McCaskill v. McKinnon

• Decision Date: 16 November 1897
• Citation: 28 S.E. 343,121 N.C. 214
• Parties: McCASKILL v. McKINNON et ux.
• Court: North Carolina Supreme Court

28 S.E. 343

121 N.C. 214

McCASKILL v. McKINNON et ux.

Supreme Court of North Carolina

November 16, 1897

Appeal from superior court, Richmond county; Coble, Judge.

Action by John C. McCaskill against McKay McKinnon and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

It was not error to charge that if defendant, a feme covert "did not state" to the examining magistrate that she signed a mortgage sued upon voluntarily, the jury should find that she did not voluntarily execute the mortgage, and was not examined separately touching her voluntary execution thereof, where there was no evidence that she assented to the examination, or expressed her voluntary assent, in any other way than by verbal statement.

J. F Payne, Frank McNeill, and Shepherd & Busbee, for appellant.

MacRae & Day and J. D. Shaw, Jr., for appellees.

FURCHES J.

This action is to foreclose a mortgage which plaintiff alleges that defendants, McKay McKinnon and wife, Grace H. McKinnon executed to him, dated August 28, 1886. The land conveyed in this mortgage belonged to the feme defendant, and was to secure an indebtedness of the husband, McKay McKinnon. The record in this case is voluminous, containing many exceptions involving questions as to competency of evidence admitted and rejected, the question of agency, and the right of the agent to apply money in his hands as such agent to the payment of his individual indebtedness. But among the many questions presented by the record, there are two, the solution of which will determine the rights of the parties. This being so, we proceed to consider them, and thereby avoid the consideration of a great many other questions presented by the appeal.

It is denied by the defendants that the privy examination of the feme defendant was taken as to the mortgage the plaintiff now seeks to foreclose. If it was not, the plaintiff cannot have a judgment of foreclosure. Plaintiff says that, if this is so, he is entitled to an equitable lien on the land for the payment of his debt. The jury found that the private examination of the feme covert was not taken to the mortgage. This settles the matter of plaintiff's right to foreclose, unless there has been error committed by the court in the evidence admitted or rejected, or in the instructions given to the jury. The evidence offered upon this issue, as to whether Mrs. McKinnon was privily examined or not, was that of D. A. Patterson, the justice who made the certificate of privy examination, and of McKay McKinnon, the husband of the feme defendant, and her own testimony. There are no exceptions to Patterson's evidence. While there are exceptions to the evidence of both McKinnon and his wife, none of these exceptions were to their evidence on this issue. This being so, if there was evidence upon which the jury might reasonably find the issue in the negative, this finding must stand. The witness Patterson, among other things, testified that: "After Mr. McCaskill and Mr. McKinnon retired, the witness read over the certificate, or started to read, and thinks he read it. She wanted to explain something, or wanted witness to explain something, witness don't remember; something witness didn't know anything about. Mr. McKinnon came back to the door, and told her it was all right, or words to that effect. The matter dropped right there. There was no more said, and witness signed the paper. McKinnon came to the parlor door. Witness and Mrs. McKinnon were inside the parlor. There was a hall and door from hall to parlor. Witness was from the parlor door several feet." The feme defendant testified that plaintiff, witness Patterson, her husband, and herself were all at her house; that she and Patterson were in the parlor, and plaintiff and her husband were in the parlor, or on the piazza; were part of the time in one place, and then in the other. She says she "did not execute the deed freely and voluntarily; did not tell Mr. Patterson that she signed the deed freely. She objected to signing the mortgage. After she raised an objection, she signed it. After she raised objection, don't think Mr. Patterson asked her if she signed it freely and voluntarily. Don't think anything was said while witness was in the parlor. She could see plaintiff and Mr. McKinnon. Mr. McKinnon was certainly where he could see her during the whole of the time. She recollects signing the mortgage. After she wrote her name to the paper, she never told Mr. Patterson or any one else that she signed it freely and voluntarily." The husband, McKay McKinnon, testified that "Mrs. McKinnon and Mr. Patterson were in the parlor, about 6 or 7 feet from where witness was, on the piazza. She refused to sign the mortgage. Witness heard her tell Mr. Patterson so. Witness was in hearing distance all the time, and in sight of them; was sitting in the window. They had some trouble about signing it in there, and witness and McCaskill went in the parlor before she signed it, and witness told her to sign it. Witness and McCaskill were both present. She didn't state that she signed it voluntarily and freely, after they went back, and there were no more questions asked her about it. She just signed it, and Mr. Patterson signed it, and Mr. Patterson signed his name, and they all came out." The plaintiff, McCaskill, testified: "Notes and mortgage were signed by the defendants, and after that Mr. McKinnon and witness retired to the piazza. Witness could not hear what Mr. Patterson and Mrs. McKinnon said, and Mr. McKinnon was out there with witness." There is some conflict in this evidence between the plaintiff and the other witnesses, Patterson, McKinnon, and wife, Grace, but not as to what occurred between Patterson and the feme defendant, as the plaintiff swears that he was not in the parlor, and could not, and, of course, did not, hear what took place. But, whatever conflict there may be, it was a matter for the jury to consider and determine what the truth of the matter was, and not for us. The only question that comes to us for our determination is whether the evidence was such as the court should have submitted this issue to the jury upon, and we are of opinion it was.

But plaintiff contends that, if there was sufficient evidence to carry this issue to the jury, there was error in the judge's charge in submitting it to the jury. We therefore reproduce the entire charge of the court upon this issue (believing this to be entirely fair to the plaintiff), which is as follows:

"The third issue is: 'Did Grace H. McKinnon freely and voluntarily execute the mortgage described in the complaint, and was she privately examined, separate and apart from her husband, touching her voluntary execution of the same?' The certificate of the justice of the peace to the mortgage states that the feme defendant was examined separate and apart from her husband touching her voluntary execution of the same, and that she stated that she did sign the mortgage freely and voluntarily, without fear or compulsion on the part of her said husband or of any other person, and that she did, at the time she was so examined, freely and voluntarily consent thereto. The jury are instructed that the certificate of the justice of the peace is presumed to be true, and that the burden of proving that it is not true is upon the defendants. If the defendants have rebutted this presumption by proof, and have shown that the feme defendant did not freely and voluntarily execute the mortgage, and that she was not privately examined, separate and apart from her husband, touching her voluntary execution of the same, the jury will answer this issue, 'No.' If the feme defendant executed the mortgage described in the complaint freely and voluntarily, and if she was privately examined, separate and apart from her said husband, touching her voluntary execution of the same, the jury will answer this issue, 'Yes.' The defendants contend that the feme defendant objected to signing the mortgage; that she and the justice of the peace, Patterson, were in the parlor, and

...