McKinney v. Sutphin

• Decision Date: 28 November 1928
• Docket Number: 357.
• Citation: 145 S.E. 621,196 N.C. 318
• Parties: McKINNEY v. SUTPHIN et ux. (BELTON, Interpleader).
• Court: North Carolina Supreme Court

145 S.E. 621

196 N.C. 318

McKINNEY v. SUTPHIN et ux. (BELTON, Interpleader).

No. 357.

Supreme Court of North Carolina

November 28, 1928

Appeal from Superior Court, Surry County; C. F. McRae, Special Judge.

Action by E. F. McKinney against S. J. Sutphin and wife, in which U G. Belton intervened. Judgment for plaintiff, and intervener appeals. Reversed.

Intervener in action to recover back usurious interest, has burden of issue.

This was an action brought on April 18, 1925, by E. F. McKinney against Mr. and Mrs. S. J. Sutphin. The plaintiff contended that the defendants were indebted to him, on account of usurious interest charged and paid, $360, and the penalty under the statute, totaling $720. The cause of action grew out of a loan of $1,000, made by Mrs. S. J. Sutphin to E. F McKinney. The note representing the loan was secured by deed of trust from E. F. McKinney and wife to T. G. Fawcett trustee for Mrs. S. J. Sutphin, on certain real estate. The deed of trust was foreclosed, and plaintiff attached the surplus fund of $240 balance after paying the note before mentioned and interest, to pay the alleged usurious $360 interest and penalty.

U. G. Belton filed interplea, as hereinafter set forth. After first having filed a written reply to the interplea, the plaintiff, E. F. McKinney, entered a demurrer ore tenus to the interplea, which demurrer the court sustained and entered judgment. From this judgment the intervener, U. G. Belton, having excepted to the court's ruling and judgment sustaining plaintiff's demurrer, excepted, assigned error, and appealed to the Supreme Court.

Other material facts will be set forth in the opinion.

The plea of the intervener, U. G. Belton, is as follows:

"U. G. Belton comes into court and files the following interplea, and says:

"1. That on or about the first day of February, 1925, E. F. McKinney (it is admitted his wife joined in the deed) conveyed to the plaintiff (U. G. Belton, intervener) the lands described in the pleadings in this cause, to wit, that certain lot or parcel of land situated in the town of Mount Airy on the north side of Franklin street and described in deed of trust executed by E. F. McKinney and wife to T. G. Fawcett, trustee for Mrs. S. J. Sutphin (erroneously named Mrs. J. S. Sutphin).

"2. That in the conveyance made and by agreement between the said E. F. McKinney and interpleader, U. G. Belton assumed the payment of the actual amount due on deed of trust executed by the said E. F. McKinney and wife

to T. G. Fawcett, trustee for S. J. Sutphin and Mrs. S. J. Sutphin, which, as interpleader is informed and believes, and as was represented to him, was one thousand dollars with interest from February 1st, 1925.

"3. That interpleader tendered to T. G. Fawcett, trustee and president of the First National Bank, one thousand dollars and interest from the first of February, 1925, and demanded the surrender of the said deed of trust, but pursuant to the direction of the said S. J. Sutphin and Mrs. S. J. Sutphin, the said T. G. Fawcett, trustee and president of the bank aforesaid, acting for the said S. J. Sutphin and Mrs. S. J. Sutphin, declined to accept the one thousand dollars with interest, but demanded $1,147.00 or thereabout, and refusing to accept the tender made and which amount was the amount assumed by interpleader. The trustee, at the direction of S. J. Sutphin and Mrs. S. J. Sutphin, advertised the aforesaid lands mentioned in said deed of trust and sold the same, when and where J. H. Folger became the last and highest bidder at the sum of twelve hundred and sixty dollars ($1,260.00), and that the said J. H. Folger transferred his right to U. G. Belton. That there is now in the hands of the trustee two hundred and forty ($240.00) dollars to which this interpleader alleges he is entitled, having tendered and then paid the amount actually due on the deed of trust; and that this interpleader is entitled to the said moneys, he having obtained through the conveyance made by E. F. McKinney and wife to interpleader the equity of redemption and right of redemption, and the right to all the moneys over and above the amount with interest from February 1st, 1925, and that said two hundred forty dollars is the property of the interpleader."

Folger & Folger, of Mt. Airy, for appellant Belton.

W. F. Carter, of Mt. Airy, for appellee.

CLARKSON J.

The sole question involved in this appeal is: Does the intervener, U. G. Belton, allege facts sufficient to entitle him to the surplus in the hands of the trustee? We think so.

The intervener's plea sets forth: (1) On or about February 1 1925, E. F. McKinney and wife conveyed to U. G. Belton a certain tract of land, describing it. (2) That in the conveyance made, and by agreement between E. F. McKinney and U. G. Belton, the said Belton assumed the payment of $1,000 and interest from February 1, 1925, the actual amount due on a deed of trust on the same land made by E. F. McKinney and wife to T. G. Fawcett, trustee for Mr. and Mrs. S. J. Sutphin. (3) U. G. Belton tendered payment of the $1,000 and interest from February 1, 1925, which the trustee and the Sutphins declined to accept. (4) Under the direction of the Sutphins, the trustee sold the land and it brought $1,260. (5) There is now in the hands of the trustee $240 balance over and above the...