Miller v. Dunn

• Decision Date: 15 October 1924
• Docket Number: 228.
• Citation: 124 S.E. 746,188 N.C. 397
• Parties: MILLER v. DUNN. ABDALLAH v. DUNN ET AL.
• Court: North Carolina Supreme Court

124 S.E. 746

188 N.C. 397

MILLER v. DUNN.

ABDALLAH v. DUNN ET AL.

No. 228.

Supreme Court of North Carolina

October 15, 1924

Appeal from Superior Court, Lenoir County; J. Lloyd Horton, Judge.

Consolidated actions by Clark Miller against Charles F. Dunn and by H Abdallah against Charles F. Dunn and Clark Miller. From an adverse judgment, Dunn appeals. New trial.

Whether note represented usurious bonus in connection with mortgage held for jury.

On March 23, 1923, Clark Miller caused summons to be issued in the action entitled "Clark Miller v. Charles F Dunn" and thereafter duly filed his complaint to which defendant filed answer. In his complaint plaintiff alleges that the defendant, at his request, paid to Copeland Bros on or about January 17, 1921, the sum of $334.45, the balance due on a note theretofore executed by plaintiff, payable to Copeland Bros. and secured by a mortgage on land; that said note was thereupon assigned, without recourse, by Copeland Bros to the defendant, who now holds the same.

He further alleges that at the time of this transaction defendant required plaintiff to execute to him a note for $100, and to secure the same by a second mortgage on the land conveyed in the mortgage to Copeland Bros.; that said note was usurious, for that it was given as a bonus to defendant for advancing the money to pay the Copeland note; and that said note has been paid by the plaintiff.

Plaintiff further alleges that on March 22, 1923, he caused to be tendered to the defendant $333.67 in payment of the Copeland note and demanded that defendant surrender the said note and cancel the mortgage securing same; that defendant declined to accept said sum, and to surrender the note, and cancel the mortgage.

Plaintiff prays that an accounting be had between him and the defendant Dunn, to ascertain the amount due upon the said note; that the said note be credited with the sum of $200, being twice the amount paid by plaintiff to defendant as usury and that upon the payment of the amount ascertained to be due, the defendant be required to surrender the said note, and cancel the said mortgage. On March 27, 1923, defendant filed his answer in which he alleged that the amount paid by him to Copeland Bros. for plaintiff's note was $384.45 and admitted the payment by the plaintiff of the note for $100. Defendant, however denied that said note was usurious.

For a further defense defendant alleged that on March 6, 1923, plaintiff conveyed the land described in the mortgage to H. Abdallah; defendant admitted that Abdallah had tendered him $333.67, and that he had refused to accept the same in full payment of the said note as the amount then due thereon was in excess of this sum. Defendant prays that the action be dismissed.

Thereafter, upon an affidavit filed in this action by the plaintiff, setting forth that the purpose of this action was to have an accounting with the defendant in order that the true amount due on said note might be ascertained, and alleging that the defendant had advertised the land described in the mortgage for sale, a temporary restraining order was issued; this order upon the hearing on April 25, 1923, was dissolved.

On April 27, 1923, H. Abdallah caused a summons to be issued in the action entitled "H. Abdallah v. Chas. F Dunn and Clark Miller" and thereupon filed his complaint in which he alleges the assignment without recourse, of the note executed to them by Miller, by Copeland Bros. to the defendant Dunn, and that there is a controversy between Miller and Dunn as to the true amount now due on the said note.

He further alleges that on March 6, 1923, defendant Miller conveyed to plaintiff, Abdallah, by deed containing the usual covenants and warranties, the land described in the mortgage; that thereafter plaintiff tendered to the defendant Dunn, in payment of the said note and in satisfaction of the mortgage securing the same, a sum of money in excess of the amount claimed by Miller to be due thereon; that the defendant Dunn refused to accept the same. He further alleges that the defendant Dunn has advertised the land described in the mortgage and subsequently conveyed by Miller to the plaintiff for sale, and that unless restrained the defendant Dunn will sell and convey the same under the power of sale contained in the Copeland mortgage.

Plaintiff further alleges the pendency of the action entitled "Miller v Dunn," in which Miller prays for an accounting and demands that the said note be credited with the sum of $200. The plaintiff, Abdallah, prays that the true amount due on the said note may be ascertained, and that the defendant Dunn, upon the payment of the said sum, be required to surrender the said note and cancel the mortgage securing the same. Defendant Miller filed no answer to this complaint. On May 4, 1923, an order was entered in this action by his honor, O. H. Allen, emergency judge, restraining defendant Dunn from proceeding further with the sale until the final hearing.

The above-entitled actions came on for trial at June term, 1924, of the superior court of Lenoir county, before Judge Horton and a jury Upon an examination of the pleadings in both actions, his honor ordered that the two actions should be consolidated for trial. The issues submitted to the jury were as follows:

(1) Did the defendant at the time of negotiating the loan to plaintiff usuriously charge and collect $100 bonus, as alleged in the complaint?

(2) Did defendant at the time of taking up note due Copeland Bros. usuriously collect $50 additional bonus, as alleged in the complaint?

Both issues being answered "Yes" by the jury, his honor rendered judgment that Clark Miller is indebted to Charles F. Dunn in the sum of $115.45 and directed and decreed that, upon the payment of this sum by Miller or Abdallah, the note and mortgage held by Dunn should be filed with the papers in this cause and marked "canceled and satisfied." Defendant Dunn excepted to this judgment and appealed to the Supreme Court. Assignments of error by the defendant Dunn are based upon exceptions appearing in the record, all taken in apt time.

Charles F. Dunn, of Kinston, in pro. per.

Sutton & Greene, of...