Mcneely v. Walters, 596.
| Decision Date | 06 January 1937 |
| Docket Number | No. 596.,596. |
| Citation | 211 N.C. 112,189 S.E. 114 |
| Court | North Carolina Supreme Court |
| Parties | McNEELY. v. WALTERS et al. |
Appeal from Superior Court, Union County; F. D. Phillips, Judge.
Action by G. R. McNeely, by his next friend, Vance McNeely, against H. F. Walters and others. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Civil action to restrain sale under power in deed of trust.
It is alleged that on January 14, 1925, the plaintiff executed and delivered to the defendant H. F. Walters promissory note in the principal sum of $1,816.20, due January 14, 1926, and as security for the payment of same, executed and delivered deed of trust on real estate situate in Union county. This latter instrument was duly registered.
The defendant Alice R. Hodges alleges that she is the holder in due course of said note by indorsement and the owner of said deed of trust by proper assignment.
It is further alleged that in June, 1926, default having been made in the payment of said note, advertisement of sale under the deed of trust was duly published, but the power was not then executed, as the plaintiff craved additional time and was granted further indulgence.
Again in August, 1935, the defendant advertised the property for sale under the power of sale contained in said deed of trust.
This sale the plaintiff seeks to restrain, alleging that said note and deed of trust were never executed by him, but were signed in his name by his brother, Grady McNeely, without authority. Grady McNeely died January 1, 1928.
There was evidence in support of these allegations.
The defendants plead estoppel and the statute of limitations.
From judgment of nonsuit entered on demurrer to the evidence, plaintiff appeals, assigning errors.
A. M. Stack, of Monroe, for appellant.
Vann & Milliken, of Monroe, for appellees.
Conceding that the note and deed of trust were executed by Grady McNeely without authority, still we think the plaintiff must fail in his suit, if not upon the principle of ratification, then upon the doctrine of estoppel. Sugg v. Credit Corporation, 196 N.C. 97, 144 S.E. 554; Law-son v. Bank, 203 N.C. 368, 166 S.E. 177.
Plaintiff was fully aware of all the facts surrounding the transaction in June, 1926, when he accepted from the defendants further indulgence and forbearance. Grady McNeely was then living and the note was not barred by the statute of limitations. Plaintiff made no contention atthat time that the note and deed of trust were not genuine. By remaining silent when it was his duty to speak, plaintiff has disadvantaged the defendants. He ought not to be heard now in...
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