Pickett v. Fulford

• Decision Date: 27 January 1937
• Docket Number: 766.
• Citation: 189 S.E. 488,211 N.C. 160
• Parties: PICKETT v. FULFORD et al.
• Court: North Carolina Supreme Court

189 S.E. 488

211 N.C. 160

PICKETT v. FULFORD et al.

No. 766.

Supreme Court of North Carolina

January 27, 1937

Appeal from Superior Court, Durham County; W. C. Harris, Judge.

Action by Rufus J. Pickett against W. A. Fulford and wife, Rosa L Fulford and others. From the judgment, W. A. Fulford and Rosa L. Fulford appeal.

No error.

Makers of note and deed of trust could not complain of recital in judgment in foreclosure action that it was admitted that plaintiff acquired note and deed of trust after maturity where makers stated in their brief that plaintiff was holder but denied that he was holder in due course, and that uncontradicted evidence showed that plaintiff acquired note after its maturity.

In action to foreclose note and deed of trust, admission of copy of letter to trustee which was not competent against makers was not harmful to makers, where facts set out in letter were in evidence otherwise.

This was an action to foreclose a deed of trust executed August 2 1922, by appellants, conveying to W. J. Brogden, trustee, certain real property as security for a note or bond in the sum of $7,100, payable to one J. S. Perry, said note or bond being due twelve months after date.

Plaintiff alleged that on September 29, 1926, he became the holder and owner of said note and deed of trust by purchase for full value from J. S. Perry, the payee, and that said note was on that date indorsed in blank and delivered to him by said Perry; that interest on the note was paid to June 29, 1933, but nothing on principal.

Appellants in their answer admitted the execution of the note and deed of trust, and that the principal of the debt had not been paid; but they alleged that "if the plaintiff ever came into possession of said note, he did so after the maturity of same and with notice of the matters and things" set up in defense; that in September, 1926, J. S. Perry, the payee, demanded payment, and appellants made arrangements with R. H. Rigsbee, executor and trustee of the estate of A. M. Rigsbee, deceased, to take up and carry the note and deed of trust for them; that defendant Rosa L. Fulford was a daughter and devisee of said A. M. Rigsbee and entitled to one-sixth of the estate upon the termination of the trust in 1933; that R. H. Rigsbee agreed to take up and hold and carry said Perry papers among the assets of said estate until the final settlement, and that R. H. Rigsbee, as executor and trustee, did, from the funds of said estate, purchase and hold the note and deed of trust sued on under agreement to postpone payment thereof until the termination of the said trust estate; that said estate has not yet been settled; and appellants allege in their answer that if plaintiff acquired said note and deed of trust, he took with knowledge of and subject to this agreement.

The following issues were submitted to the jury:

"(1) Did the defendants, W. A. Fulford and wife, Rosa L. Fulford, execute the note dated August 2, 1922, for $7,100.00 and the deed of trust securing the same, as alleged in the complaint?

(2) Did R. H. Rigsbee as Executor and Trustee of the Estate of A. M. Rigsbee purchase said note and deed of trust from J. S. Perry on or about the 29th day of September, 1936, as alleged in the answer?

(3) Did R. H. Rigsbee and Mrs. Rosa L. Fulford have an understanding and agreement that said note would be held by the estate and paid at the time of the settlement of the estate of A. M. Rigsbee, as alleged in the answer?

(4) Did Rufus J. Pickett acquire said note after the 2nd day of August, 1923?"

The court, among other things, charged the jury as follows:

"Now, gentlemen, I charge you that if a person receives a note, or purchases a note after its maturity, that means after it is due, he takes that note subject to any defenses and infirmities to which it was subject in the hands of the payee; that is, in this case it is admitted by Mr. Pickett that he bought this note after its maturity, then, if he did that, he bought it subject to any defenses and infirmities to which it was open in the hands of the payee, that means if he bought that after maturity and there was an agreement between R. H. Rigsbee as executor and trustee, and Mrs. Fulford, then he bought it subject to that agreement if the estate owned the note or got it in its possession.

But I charge you, before you can answer these issues and decide this case in favor of the contentions of the defendants, you must be first satisfied from this evidence that this note was purchased by the A. M. Rigsbee estate, and then, if you are satisfied that it was purchased by the A. M. Rigsbee estate, then, before the defendants can recover under their contentions, you have got to be satisfied that there was an agreement between Mr. R. H. Rigsbee, as executor and trustee, and Mrs. Fulford that he would purchase this note from the funds of the estate and hold it, as the defendants contend; that is, two things before she can recover, that there was an agreement and that the estate held this note. Even if you find or are satisfied from this evidence that there was an agreement between Mr. Rigsbee, as executor and trustee, that he would do this for her as she says and yet he did not do it, he did not buy that note and make it the asset of the estate, then the defendants cannot recover, regardless of any agreement which they had, so I ask you to remember those two things."

To the second paragraph quoted above appellants noted exception.

Upon the second issue the court charged as follows:

"Now the burden of that issue is on the defendant Mrs. W. A. Fulford. Before you can answer that issue 'Yes,' which would mean that you are finding from the evidence that R. H. Rigsbee did purchase the note as executor and trustee, the defendants must satisfy you from the evidence and by its greater weight that Mr. Rigsbee did purchase that note as executor and trustee of the estate, and if you are so satisfied, gentlemen, you will answer that issue 'Yes;' if you are not so satisfied you will answer it 'No.'

If you answer that issue 'No,' you need not consider the other issues because that will end the case, because if he did not purchase it the defendants cannot recover under their contentions, but if you answer it 'Yes,' you will come to a consideration of the third issue, which is as follows."

The appellants noted exception to the last-quoted paragraph.

The jury for their verdict answered the first issue "Yes" and the second issue "No."

The judgment, after setting out the verdict, recited: "And it further appearing to the court that it was admitted by counsel for W. A. Fulford and Rosa L. Fulford and counsel for plaintiff that plaintiff acquired said note and deed of trust after the 2nd day of August, 1923," and adjudged the amount of the debt to be $7,100 with interest from June 29, 1933. Foreclosure sale of the land described in the deed of trust was decreed, together with payment of taxes and street assessments.

Defendants W. A. Fulford and Rosa L. Fulford appealed.

Bryant & Jones and Egbert L. Haywood, all of Durham, for appellants.

Hedrick & Hall, of Durham, for appellee.

DEVIN Justice.

The principal question presented by the appeal is the correctness of the ruling of the court below that the note and deed of trust in the hands of the plaintiff though acquired after maturity, were not subject to equities and defenses in favor of the makers by reason of an alleged agreement between them and R. H. Rigsbee, unless R. H. Rigsbee had purchased or...