Morisey v. Swinson
Decision Date | 14 January 1890 |
Citation | 10 S.E. 754,104 N.C. 555 |
Parties | MORISEY v. SWINSON. [1] |
Court | North Carolina Supreme Court |
Appeal from superior court, Duplin county; BYNUM, Judge.
Foreclosure suit by D. G. Morisey against J. E. Swinson. From a judgment for defendant, both parties appeal.
A mortgagee who seeks to have a mortgage "for $700, due by bond or note," corrected on the ground of mutual mistake as to a recital that the debt was due "by bond or note," cannot object to the correctness of the amount due on the ground that the parties had full opportunity to ascertain the same when the mortgage was executed.
W. R Allen, for plaintiff.
Kornegay & Stevens, (H. L. Stevens, of counsel,) for defendant.
This action was brought to foreclose a mortgage of land executed by the defendant to the plaintiff on the 29th day of November, 1867, to secure the payment by the former to the latter of "seven hundred dollars, due by bond or note with interest from some time in the year 1857, as on reference to said bond will more fully appear," etc., as recited therein. Among other things, the plaintiff alleged in his complaint that the recital in the mortgage as to the "bond or note" "was inserted therein by mistake and inadvertence of both parties" thereto; and he demanded judgment that the mortgage be corrected so as to recite simply an indebtedness in the amount specified, no such bond or note having been executed or intended; that the mortgage as corrected be foreclosed, the land sold, etc.; and he asked for general relief, etc. The defendant, in his answer, denied that he owed the debt specified in the mortgage, and alleged that the debt intended to be secured by it was a judgment specified for $209.61, balance of a note sued upon. He alleged facts explanatory of how the false recital in the mortgage came to be made, and that it "was caused as above set forth, and by inadvertence and mistake of both parties to the deed, and that no such indebtedness of $700 existed from defendant to plaintiff at the time, by note or otherwise; and he further alleged that long before that time he had fully paid to the plaintiff the mortgage debt intended, etc. The pleadings having been completed, an order of reference was entered, whereof the following is a copy "By consent of parties it is ordered that the above action be referred to F A. Daniels, under the Code." Under this order the referee took much evidence found facts, and the law applicable, stated certain of his rulings, and made and filed his report, to which divers exceptions were filed by the defendant. Upon consideration of the same, the court made an order, of which the following is a copy: To this order the plaintiff excepted, and assigned divers grounds of error therein; but these are not necessary to a proper understanding of the opinion of the court, and need not be repeated. Afterwards the referee heard further evidence, found the facts and the law applicable, and made and filed his second report. The following are copies of material parts thereof:
The plaintiff and defendant respectively filed numerous exceptions to this report. These are sufficiently referred to in the opinion, to be understood. The court below overruled all the exceptions of the parties, confirmed the report, and gave judgment in favor of the defendant. Each of the parties, having excepted, appealed to this court.
The purpose of this action is to correct the deed of mortgage in question, in certain respects, on account of mistake, to foreclose the same, and, to that end, to have an account taken. The cause of action is wholly equitable in its nature and hence the court must exercise its authority and jurisdictional functions as a court of equity, applying such statutory provisions as may be applicable. Indeed, the jurisdiction is so extensive that the court may administer the rights of the parties, as to the matter in litigation, to the extent they come properly within the scope of the action, whether the same be legal or equitable, or both. There exists directness and thoroughness in the prevailing method of civil procedure. One of its distinctive and leading features is to avoid circuity of action and method, and to administer the rights of parties, whether...
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