McNeill v. Thomas
| Decision Date | 28 September 1932 |
| Docket Number | 113. |
| Citation | 165 S.E. 712,203 N.C. 219 |
| Parties | McNEILL v. THOMAS et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Harnett County; Harris, Judge.
Action by H. G. McNeill against Sidney Thomas, administrator of W J. Mason, deceased, and another. Judgment for plaintiff, and the named defendant appeals.
New trial.
Unless facts relied on to constitute fraud are distinctly alleged courts cannot grant relief therefor.
The plaintiff filed two complaints. In the first he alleged that on December 3, 1926, he and his wife executed and delivered to W. J. Mason their promissory note in the sum of $2,200 with interest at the rate of 6 per cent., and to secure the debt executed to W. P. Byrd, trustee, a deed of trust conveying 25 acres of land which is one-half of a 50-acre tract hereafter described; that the papers were given for borrowed money, the plaintiff having received only $2,000 and having been charged $200 in excess of the legal rate of interest. He alleged that on February 2, 1928, he and his wife executed to W. J. Mason their promissory note for $3,212, with interest at 6 per cent., and to secure the note executed a deed of trust to A. A. McDonald, trustee conveying two tracts of land, one containing 128 acres and the other the 50 acres referred to above, subject to a mortgage of $4,900 held by the Federal Land Bank; that the last-named note and deed of trust were given as additional security for the note of $2,000, and that the plaintiff received no other money or consideration; that on January 5, 1929, with Mason's consent and after the release of his lien, the plaintiff and his wife conveyed the tract of 126 acres to Mollie D. Gardner, who agreed with the plaintiff and Mason to assume payment of the debt due the Federal Land Bank, and Mason agreed that he would not foreclose his deed of trust until the debt due the Land Bank was paid. It was further alleged that the plaintiff tendered the trustees $2,000, with interest in payment of the two notes, and that they refused to accept this sum, whereupon the trustee, McDonald advertised the 50-acre tract for sale. The plaintiff prayed that a restraining order be issued and that the deeds of trust be discharged upon payment of $2,000, with interest.
The administrator filed an answer denying the material allegations in the complaint, and alleged that the release of the 126-acre tract was in consideration of acquiring a first lien on the tract of 50 acres. He asked that the plaintiff's action be dismissed and that the trust be foreclosed.
Admitting an indebtedness of $2,000 with interest from December 3, 1928, the plaintiff applied to a judge of the superior court for a restraining order. The court adjudged that the plaintiff pay this amount to the defendant on or before February 1, 1931, and, in the event of his failure to do so, that the restraining order be dissolved.
The plaintiff failed to make payment, the land was sold pending the action, and the plaintiff filed an amended complaint in which he alleged:
(1) That the deed of trust had been foreclosed; (2) that the consideration of the notes was $2,000 loaned the plaintiff by W. J. Mason; that to this sum was added $200; that the note for $3,212 was a renewal of the first note; and that Mason required him to sign the renewal note, and charged $1,212 as a bonus; (3) that the renewal note was framed for the purpose of evading the law of usury; (4) that Thomas, as administrator, and A. A. McDonald, as trustee, sold the property at the price of $3,212, and refused to account to the plaintiff for the usury charged and collected; (5) that the plaintiff should recover $2,424, with interest from May 13, 1931, and that the defendant has forfeited all interest on the original debt.
The administrator filed an answer denying these allegations.
The defendant Thomas testified that he caused the land to be sold under the power in the deed of trust to McDonald and bought it in at $3,200 for the benefit of the estate, took a deed for the land, and had since tried to sell it, but without success.
At the close of the plaintiff's evidence, it was agreed between the parties that the plaintiff would withdraw all allegations of usury against the defendant as set out in the complaint, and that the case should be tried upon the following issues:
(1) In what amount was H. G. McNeill indebted to W. J. Mason at the time of the sale on April 21, 1931? A. $2,000.
(2) What was a fair market value of the land described in the complaint on April 21, 1931? A. $3,500.
It was agreed that judgment should be rendered upon the jury's answer to these two issues, the parties stating that, since it is a matter against an estate and one that should be settled, they wanted the case tried upon these issues, and waived all contentions except such as could be...
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