McMillan v. Baxley
| Decision Date | 09 February 1893 |
| Citation | 16 S.E. 845,112 N.C. 578 |
| Parties | McMILLAN et al. v. BAXLEY et ux. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Robeson county; GRAVES, Judge.
Action by J. L. McMillan and Paisley McMillan against D. C. Baxley and wife to recover land. From a judgment for plaintiffs defendants appeal. Affirmed.
In an action by the purchaser at a sale under a power in a mortgage to recover the land from the mortgagor, in which the mortgagee is joined as a party plaintiff, defendant cannot complain of the inconsistency between a special finding that the purchaser is the owner of the land and another finding that the mortgagee is the owner.
The complaint alleges, in substance, that the plaintiff Paisley McMillan is the owner in fee simple of the land described in the complaint, and that the defendants wrongfully withhold possession thereof from the said Paisley. The plaintiffs further allege that on January 1, 1886, the defendants made and executed their bond and a mortgage conveying said land to plaintiff J. L. McMillan, to secure the payment of $168 and interest, due on the 1st of October, 1886; that said J. L McMillan duly sold said land under the terms of the mortgage on the 29th of November, 1886, the defendant D. E. Baxley being present and making no objection, and plaintiff Paisley became the purchaser at $150, and received from J. L McMillan a deed in fee simple for the same; that, in the spring of 1887, defendant D. C. Baxley rented said land from Paisley McMillan at $20 per annum, and, after notice from said Paisley, refused to give up possession to him at the expiration of the term. Defendants admit that they are in possession, and deny that they wrongfully withhold it. They say that they intended to make bond and mortgage to plaintiffs for $150, and that it was written $168 by mistake or fraud. They aver that the alleged sale was unfair, and for a grossly inadequate price; that the same was a sham and a fraud, and the deed, if made by J. L. McMillan, to Paisley McMillan, conveyed no title; that Paisley was partner with and agent of J. L. McMillan, and managing his business. They allege false representations on the part of one or both of the plaintiffs as to the amount of the bond and mortgage, and they deny that the mortgage was ever properly acknowledged for probate. They admit the signing by them of the bond and mortgage. Defendant D. C. Baxley denies that he rented the land from Paisley, or that he owes him any rent, and admits that he refused to give him up the possession of the land. He sets up a counterclaim or set-off for about $100 for work and labor, etc., which he avers that plaintiffs promised to credit upon the bond.
He alleges that there had been a long course of dealings between plaintiffs and defendant D. C. Baxley, and that defendants in 1885 made and executed to plaintiffs a bond for $150, and a mortgage to secure the same, that were intended to cover any balance that might be due upon a settlement between the parties, and that on the 1st of January, 1886, defendants made another bond and mortgage, or attempted to do so, to renew the former ones, and in the same amount, to secure any balance due on a settlement. They plead usury in the transaction, and ask for relief. The plaintiffs in their reply deny the allegations of the counterclaim.
The plaintiffs tendered the following issues, which were submitted to the jury, and responded to as set out: These issues were excepted to by the defendants, who in turn offered the following issues, which were all submitted: His honor held that it was. "(4) Were plaintiffs, J. L. McMillan and Paisley McMillan, partners when mortgage was taken, or when sale was made, or was Paisley McMillan acting as agent for J. L. McMillan?" The answer to the first and second questions of this issue was "No," and to the last, "Not at sale." His honor submitted all the issues Nos. 1 and 3 offered by defendants. After the evidence closed and argument began, and after one counsel on each side had addressed the jury, the defendants moved for leave to submit the following issue: "Were the defendants, or either of them, induced to sign the mortgage by surprise or undue influence?" Motion denied, and defendants excepted. The defendants moved for leave to amend the answer in order to make it conform to the facts proved, and to allege that the plaintiffs procured the signatures of defendants by surprise and undue influence. Motion denied, and defendants excepted. There was judgment for plaintiffs, and defendants appealed.
Wm. Black, for appellants.
As far as the case and the record show, there was no motion for reference to state an account between mortgagors and mortgagees as demanded in the answer. Indeed, as this was an action brought by the alleged purchaser of the land under a mortgage sale, and until the issues were determined whether the plaintiff Paisley McMillan were a partner or agent of the mortgagee, J. L. McMillan, or a bona fide purchaser for value and without notice, it would not have been proper to have ordered an account. If the jury had found that Paisley McMillan was the agent of the mortgagee in making the sale, or was a partner and interested in the mortgage, or was the manager and clerk of the mortgagee, and had notice of the state of the account between mortgagors and mortgagee, and that defendants did not owe the amount claimed as the mortgage debt, the sale would have been set aside, and, if the two causes of action could be joined, the mortgagee being a party to this action, an account might have been ordered.
On the trial the defendants moved to strike out the name of J. L. McMillan as party plaintiff, and excepted to the denial of their motion. Misjoinder of parties is to be taken advantage of by demurrer. The misjoinder of unnecessary parties is mere surplusage under the Code and not a fatal objection. Clark's Code, § 239, and cases there cited.
The defendants moved to strike out the reply, and, this motion being denied, they excepted. According to the record the reply was filed within two days after the answer, and apparently at the same term of the court. No reason is given us for striking it out. If the plaintiffs were not entitled to file it on account of laches, it was in the discretion of the presiding judge to permit it to be done. Code, § 274; Mallard v. Patterson, 108 N.C. 255, 13 S.E. Rep. 93.
The defendants except for errors in refusing instructions asked by defendant. It is stated in the case that the first instruction was given as asked, except that the words "at once" were omitted. On reference to the first prayer, we find no such words as "at once," and defendants' counsel has not pointed out to us the error, if any there were.
The fourth prayer was refused. This was in effect that the burden was on the plaintiffs to prove that Paisley McMillan, the purchaser, was neither the partner nor agent of the mortgagee when he bought the land at the mortgage sale. In the preceding instructions the presiding judge had fully charged the jury that the burden was entirely upon the plaintiffs to prove everything fair and honest, and no advantage taken of defendants; that the law presumed fraud, and looked upon the power of sale...
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