Pendergrass v. Massengill, 768

• Decision Date: 03 February 1967
• Docket Number: No. 768,768
• Citation: 152 S.E.2d 657,269 N.C. 364
• Court: North Carolina Supreme Court
• Parties: Frank PENDERGRASS (Widower) and Ruth Pendergrass (Single) v. E. S. MASSENGILL and wife, Margaret T. Massengill, Home Savings & LoanAssociation, Samuel F. Gantt, Trustee, Ralph B. Massengill, Conservator, andRalph B. Massengill, Guardian of E. S. Massengill.

Page 657

152 S.E.2d 657

269 N.C. 364

Frank PENDERGRASS (Widower) and Ruth Pendergrass (Single) v. E. S. MASSENGILL and wife, Margaret T. Massengill, Home Savings & LoanAssociation, Samuel F. Gantt Trustee, Ralph B. Massengill Conservator, andRalph B Massengill, Guardian of E. S. Massengill.

No. 768.

Supreme Court of North Carolina.

Feb. 3, 1967.

Blackwell M. Brogden, Durham, for plaintiffs appellants.

Claude V. Jones, Durham, for Home Savings & Loan Ass'n.

C. Horton Poe, Jr., Durham, for Margaret T. Massengill.

LAKE, Justice.

The plaintiffs' assignments of error Nos. 3, 4 and 5, relating to certain exceptions to the admission and exclusion of evidence, are deemed abandoned, the brief filed by the plaintiffs containing no argument or citation of authority in support of these exceptions or any other reference thereto. Rule 28 of the Rules of Practice in the Supreme Court.

Assignment of error $6 relates to the admission of testimony by Mrs. Massengill. Upon questions proper in form, she was permitted, over objection, to state that the original purchase price agreed upon between Mr. Pendergrass on the one hand and the Massengills on the other was $16,000, of which the Massengills paid 'down' $2,000 and that the house on Lot 15 had been completed when they moved into it. There was no error in the admission of this testimony. On cross examination, Mrs. Massengill testified that she had no personal knowledge of the amount of the down payment except for a payment of $100 when they went to look at the house and what her husband had told her. The plaintiffs did not move to strike the former testimony as a result of this admission on cross examination. In any event, the testimony that the house was completed when the Massengills moved in could not be prejudicial to the plaintiffs and there is ample evidence in the record, apart from the testimony by Mrs. Massengill, to support the court's finding that the Massengills, at the time of the original transaction, paid Mr. Pendergrass $2,000, in addition to the $8,500 borrowed from Home Savings & Loan Association. It not appearing that the trial judge rested his finding upon this testimony by Mrs. Massengill, it will be presumed that he disregarded it. State Farm Mutual Automobile Insurance Co. v. Shaffer, 250 N.C. 45, 108 S.E.2d 49; Bizzell v. Bizzell, 247 N.C. 590, 605, 101 S.E.2d 668. There is no merit in assignment of error $6.

Assignment of error $1 relates to 11 exceptions to findings of fact made by the trial court and set forth in its judgment. We have carefully considered each of these exceptions. Each fact so found is amply supported by the evidence, the allegations of the plaintiffs' own complaint or reasonable and proper inferences and computations based thereon. Many of the findings are in the exact wording of the testimony of Mr. Pendergrass and his witness, Mr. Spears. The parties having waived trial by jury, the findings of fact, supported as they are by evidence, are binding upon this Court on appeal. Young v. State Farm Mutual Auto. Insurance Co., 267 N.C. 339, 148 S.E.2d 226; Greant American Insurance Co. v. Holiday Motors of High Point, Inc., 264 N.C. 444, 142 S.E.2d 13; Johnson v. Johnson, 262 N.C. 39, 136 S.E.2d 230; Gasperson v. Rice, 240 N.C. 660, 83 S.E.2d 665. There is no merit in assignment of error $1, or any portion thereof.

Assignment of error $2 relates to the conclusions of law drawn by the trial court and to the provisions of its judgment entered thereon.

The record discloses no breach of contract, misrepresentation or other wrongdoing by, or any unjust enrichment of Home Savings & Loan Association. It made a loan to the Massengills, the entire proceeds of which were paid over to Mr. Pendergrass. It took from the Massengills a deed of trust upon a lot conveyed to them by him. When he discovered that he had conveyed the wrong lot by mistake, the Association twice acquiesced in plans conceived by his then attorney for the correction of his error. At the request of his then attorney, it caused the deed of trust securing the note held by it to be foreclosed, default having then occurred in the payments upon such note. At the foreclosure sale it placed a bid, as it had been requested by his attorney to do, for the full amount required to discharge the note secured by the deed of trust. It was Mr. Pendergrass, not the Association, who prevented the complete execution of his attorney's plan for the correction of his mistake. There is nothing to indicate that the Association would not have reconveyed Lot 13, as it had agreed with his attorney to do, if he had permitted it to become the purchaser at the foreclosure sale. No doubt, he bid at the sale due to fear that otherwise he would lose the investment made by him in constructing the new house on Lot 13 after his discovery of his original mistake. Be that as it may, the record shows no action by the Association except such as it was requested to take by the plaintiffs' then attorney. Upon Mr. Pendergrass' election to buy Lot 13 at the foreclosure sale, the Association did nothing other than to receive from the trustee that portion of the proceeds of the sale to which it was entitled under the provisions of the deed of trust. The title to Lot 13 now reposes exactly where both plaintiffs wanted it. Any payment by them to bring about that result was due to their voluntary action without any inducement by the Association.

The plaintiffs brought this action to recover legal title to Lot 15 free from any claim of the Association. They have done so. The record does not indicate that the Association has ever had or claimed any right, title or interest in or lien upon Lot 15. There is nothing in the record to indicate that the Association instigated, brought about, advised, or knew about the registration by the plaintiffs' then attorney of the deed conveying Lot 15 to the Massengills.

The plaintiffs have neither alleged nor proved any right of action against Home Savings & Loan Association. There was, therefore, no error in the dismissal of the action as to it and the judgment for the recovery by it of its costs.

The defendant Samuel F. Gantt is neither alleged in the complaint nor shown by the evidence to have had any connection whatever with any of these matters except that he prepared the original conveyances and examined the title to Lot 13 for the Massengills and Home Savings & Loan Association, he was trustee in the second deed of trust given upon Lot 13 to secure Mr. Pendergrass, and he advised Mrs. Massengill concerning the foreclosure. The deed of trust to him as trustee was wiped out by the foreclosure of the first deed of trust, as a resuslt of which Mr. Pendergrass reacquired Lot 13. There is no suggestion that Mr. Gantt knew of, or was responsible for, the original mistake in conveying Lot 13 instead of Lot 15. It is not alleged in the complaint, or otherwise suggested in the record, that Mr. Gantt has ever claimed any right, title or interest in or lien upon Lot 15. The plaintiffs having neither alleged nor proved any right of action against Samuel F. Gantt, there was no error in the dismissal of the action as to him or in the judgment that he recover his costs.

The court having adjudged that the deed conveying Lot 15 to the Massengills is void and having ordered it cancelled upon the record, the plaintiffs have recovered legal title to Lot 15, which is the subject of this lawsuit. The only question remaining is whether the trial court erred in...