Robinson v. Willoughby.

• Decision Date: 30 June 1871
• Citation: 65 N.C. 520
• Court: North Carolina Supreme Court
• Parties: ROBINSON v. WILLOUGHBY.

65 N.C. 520

ROBINSON

v.WILLOUGHBY.

Supreme Court of North Carolina.

June Term, 1871.

When a debtor conveys realty to a creditor by deed absolute in appearance, and at the same time gives his note for the amount of such indebtedness, and takes a bond for title upon the payment of such note: Held, that such transaction is a mortgage.

To determine whether a transaction is a mortgage or a defeasible purchase, it will be regarded as the former, if at the time of the supposed sale the vendor is indebted to the vendee, and continues to be such with a right to a re-conveyance upon the payment of such indebtedness.

Mason v. Hearne, Bus. Eq. 88, cited and approved.

This was a civil action for the recovery of real estate tried before Buxton, J., at Spring Term, 1871, of UNION Superior Court.

The facts are that both parties claimed title under one D. R. Christenbury. The conveyance from Christenbury to the plaintiff was in form an absolute deed in fee simple, reciting a consideration of $310, dated December 25th, 1865, and duly registered February 8th, 1869, and was for fifty-two acres of land. At the time of the execution of the foregoing deed, Christenbury being indebted unto the plaintiff in the sum of $310, the latter gave to Christenbury a bond, covenanting therein to convey the land in controversy to him, if he should pay off $310 and interest within two years, and at the same time Christenburyg ave his note to plaintiff for $310. All the old evidences of indebtedness of Christenbury to the plaintiff were surrendered to him at the time of the execution of the deed, and bond for title, and the receipt of said note. The witness, Stillwell, who prepared both instruments of writing, testified that he regarded the sale of the land as absolute, and Christenbury was to have a re-conveyance of the land upon the payment of three hundred and ten dollars within two years from date of conveyance. He also testified that, prior to said conveyance by Christenbury to plaintiff, that the former was indebted to plaintiff, and applied to witness to become his personal security for a part of this indebtedness, upon which he says he advised him to sell his lands to plaintiff to pay off his debt to him.

The defendant offered in evidence a deed from Christenbury for the same land, reciting a consideration of five hundred dollars, dated January 17th, 1867, and registered 3d June, 1867. Christenbury remained in possession of the land in controversy after his deed to the plaintiff, and without paying any rent, till the date of the deed to the defendant, when he left the State. The defendant gave to Christenbury a tract of land in South Carolina for the land in controversy.

The bond for title from plaintiff to Christenbury had never been registered, nor had the latter ever paid plaintiff any part of the money due him.

The plaintiff insisted that the facts showed the sale to plaintiff was absolute, coupled with a contract of re-sale, and that his deed being the oldest, entitled him to recover. Whilst the defendant insisted that the transaction between Christenbury and plaintiff showed a mere mortgage, and that plaintiff could not recover.

His Honor charged the jury that inasmuch as the parties agreed as to the facts, that it devolved on the Court to decide the law applicable to the facts, and that the transaction between the plaintiff and Christenbury was not a mortgage, but that it was an actual sale, with an agreement to re-sell the same lands to Christenbury within two years; that as both parties claimed under Christenbury, and the plaintiff's deed being the oldest, he was entitled to recover, and the duty of the jury was merely to assess the plaintiff's damages.

Defendant excepted. Verdict for plaintiff. Judgment and Appeal.

J. H. Wilson, for plaintiff .

Ashe, for defendant .

RODMAN, J.

As the entire contract between the plaintiff and Christenbury was in writing, and there was no evidence of any fact tending to show fraud or mistake, his Honor rightly considered the nature and effect of the contract, to be a matter of law, and for his decision. If his Honor permitted the evidence of Stillwell, that he considered the transaction a conditional sale, and not a mortgage, and that such was the intention of the...