Miller v. Marriner

• Decision Date: 19 March 1924
• Docket Number: 57.
• Citation: 121 S.E. 770,187 N.C. 449
• Parties: MILLER ET AL. v. MARRINER ET AL.
• Court: North Carolina Supreme Court

121 S.E. 770

187 N.C. 449

MILLER ET AL. v. MARRINER ET AL.

No. 57.

Supreme Court of North Carolina

March 19, 1924

Appeal from Superior Court, Washington County; Connor, Judge.

Action by Mrs. H. T. Miller and another against Mrs. Margaret Ella Marriner and others. Judgment for defendants, and plaintiffs appeal. No error.

Where a note is payable three years after date, but the interest is payable semiannually, and a mortgage securing the note subjects the land to sale on default in payment of principal or interest, both become due on the debtor's failure to pay interest when due, and the creditor may foreclose.

L. C Marriner died on the 3d day of May, 1921. He was married three times. By his first wife, Jane Marriner, who died on the 18th day of May, 1890, he had two children, the plaintiffs in this case. By his second wife he had a son Cecil Marriner, and by his third wife, Margaret Ella Marriner, he left three children, Sterling, Louise, and Louis Marriner. His widow, Margaret Ella Marriner, and his children by his third marriage are defendants in this case. It is not known whether Cecil Marriner, the son by his second wife, is living or dead, and his whereabouts is unknown. He was not made a party to the action.

On January 1, 1890, Jos. W. Blount and wife, Mary I. Blount made a deed to Jane Marriner for what is now known as "the Marriner Hotel Property." The consideration stated in the deed was $259. On the same day the deed was made L. C. Marriner and his wife, Jane Marriner, executed a mortgage to Jos. W. Blount:

"For that whereas, the said Jane Marriner is indebted to the said Jos. W. Blount in the sum of $259.00, for which said Jane Marriner has executed and delivered to the said Jos. W. Blount as aforesaid, her bond of even date with this deed in said sum of $259.00, payable, one, two and three years after date, with interest thereon from date until paid, at the rate of eight per centum per annum, payable on the 1st day of January, 1891, and January, 1892, and January, 1893, hereafter, and it has been agreed that the payment of said debt shall be secured by the conveyance of the land hereinafter described."

Both deed and mortgage were at once recorded in Washington county.

On January 9, 1893, Jos. W. Blount sold the land under the terms of his mortgage at the county courthouse door, and W. H. Fitchett became the last and highest bidder in the sum of $321. The same day W. H. Fitchett made a deed to L. C. Marriner, consideration $321. These deeds were at once recorded (January 12, 1893). L. C. Marriner willed the property to his widow and children, the defendants in this action.

The plaintiffs bring this action, and allege:

That their father L. C. Marriner, "subsequent to the death of the said Mrs. Jane Marriner, to wit, on January 9, 1893, having failed to pay or discharge the interest due upon the said mortgage debt, as plaintiffs are informed, believe, and so aver, as he was in duty bound to do, and further having failed to discharge said mortgage debt in toto as administrator of his deceased wife, the said Mrs. Jane Marriner, notwithstanding, as plaintiffs are informed, believe, and aver, he was entitled to letters of administration upon her said estate, and notwithstanding further, as aforesaid, that the said Mrs. Jane Marriner died seized and possessed of property other than that above described of value more than sufficient to discharge said mortgage debt, did, either for the purpose of subsequently holding said property in trust for himself and the plaintiffs, according to their respective interests of life tenant and remaindermen, or else with the design to defraud the plaintiffs of their interest as remaindermen, cause or procure said property to be sold under and by virtue of the provisions of the said mortgage, and did further, at said sale, purchase said property through the medium of one W. H. Fitchett, his agent," etc.

Plaintiffs further claim:

That they were "in ignorance of the existence of the said mortgage and the sale thereunder whereby defendants claim title in fee inured to the said L. C. Marriner, until after the death of the said L. C. Marriner and the production of said paper writing alleged, as aforesaid, to be his last will and testament."

The plaintiffs pray:

"That the said L. C. Marriner may be adjudged to have held said property in trust for the plaintiffs after the expiration of his life estate, and that the defendants, if the said paper writing alleged to be the last will and testament of said L. C. Marriner be valid, be adjudged to hold the said property as trustees for the plaintiffs; that plaintiffs be adjudged to own the said property in fee," etc.

Mrs Margaret Ella Marriner, the widow, and as guardian ad litem for her children, answers and says:

"It is denied that Mrs. Jane Marriner ever held any title or interest in the property known as the hotel property, except the mere naked legal title, all the beneficial interest having at all times been in the said L. C. Marriner. These defendants are informed, and so aver, that Mrs. Jane Marriner was possessed of no estate and owned no property and paid no consideration for any conveyance made to her, and particularly paid none for the conveyance made to her, recorded in Book 30, p. 34, but that all of said consideration was paid by the said L. C. Marriner, and Mrs. Jane Marriner held at most the legal title only for the benefit of the said L. C. Marriner; * * * that on or about the 9th day of January, 1893, this property described in said mortgage was advertised and sold, at which time and place, as they are informed and believe, when W. H. Fitchett purchased the same. These defendants further aver that thereafter the said Fitchett, for valuable consideration, conveyed the said property described in said deeds to the said L. C. Marriner. * * * And these defendants specifically deny any fraud on the part of the said L. C. Marriner or said Fitchett or any one else connected with said sale."

The defendants further answer and say:

"That for more than 20 years, and for more than 21 years prior to his death, the said L. C. Marriner was in open, notorious, adverse, exclusive, and continuous occupancy over the premises referred to in the complaint, exercising sole dominion of the same and using the same as his own, paying all taxes and making all use of the said property; that he built the hotel upon the same and placed all other improvements upon the said property which had theretofore been but a vacant lot; that if the plaintiffs ever had any cause of action against the defendants or against L. C. Marriner, under whom the defendants claim, which these defendants deny, the same arose more than 20 years prior to the bringing of this action, and these defendants especially plead the said lapse of time and the 21-year statute of limitations in bar of the assertion of said claim."

Defendants plead the 3, 7, and 10 year statutes of limitations. They further say:

"These defendants aver that the said claim of the plaintiffs, if any they ever had, being equitable in its nature is a stale claim, and these defendants aver that the plaintiffs have slept upon their rights, and these defendants especially plead the laches of the plaintiffs, independent of any statute of limitations in bar of the assertion of any such claim as set out in the complaint at this late day, and insist that this court of equity, by reason of said laches, should not permit the plaintiffs now to assert an equity which they must assert to entitle them to relief, and which could have been asserted at any time for years past when the defendants and those under whom they claim would have been in position to meet the same, and that to permit the assertion of the claim at this time would be to place the defendants at a great disadvantage."

The following issues were submitted to the jury, and their answers thereto:

"1. Was Mrs. Jane Marriner, at the time of her death, in May, 1920, the owner in fee of the property in controversy, subject to the Blount mortgage, as alleged in the complaint? Ans. Yes.

2. What amount was due upon said mortgage on the 9th day of January, 1893? Ans. $321.73.

3. What was the fair market value of said property on said date? Ans. $321.73.

4. Did W. H. Fitchett bid in said property, at a sale under said mortgage, for and on behalf of L. C. Marriner, the life tenant, and take a deed therefor, as alleged in the complaint? Ans. No.

5. Did L. C. Marriner cause or procure said sale to be made? Ans. No.

6. Did said Marriner acquire said lands through Fitchett, in fraud of the rights of the plaintiffs, as alleged in the complaint? Ans. No.

7. What was the usual rental of said property, during years 1921, 1922, and 1923? No answer.

8. Is plaintiffs' cause of action barred by the statute of limitations, as alleged in the answer? No answer.

9. Is plaintiffs' cause of action barred by the plaintiffs' laches, as alleged in the answer? No answer."

The court below, on the verdict, gave judgment "that plaintiffs take nothing by their action, and that defendants go without day," etc.

The plaintiffs assigned errors, the refusal of special prayers for instruction, the charge as given in certain particulars, the judgment of the court below, and appealed to this court. The material assignments of error will be considered in the opinion.

W. L. Whitley, of Plymouth, Vann & Holland, of Edenton, and Meekins & McMullan, of Elizabeth City, for appellants.

Van B. Martin, of Plymouth, and Ehringhaus & Hall, of Elizabeth City, for appellees.

CLARKSON J.

The fifth issue submitted to the jury was as follows: "Did L. C. Marriner cause or procure said sale to be made?" To this issue the jury answered, "No." Upon this issue ...