Robinson v. Willoughby

• Decision Date: 30 June 1872
• Citation: 67 N.C. 84
• Court: North Carolina Supreme Court
• Parties: DANIEL B. ROBINSON v. WILLIS J. WILLOUGHBY.

67 N.C. 84

DANIEL B. ROBINSON

v.WILLIS J. WILLOUGHBY.

Supreme Court of North Carolina.

June Term, 1872.

Where a complaint demanded judgment for the possession of land under a deed absolute on its face, which was subsequently decided upon appeal to this Court to be a mortgage, and a venire de novo on that ground was ordered: Held, that the Superior Court had power (under C. C. P., sec. 132) when the case came on for trial again, to allow an amendment of the complaint, so as to demand judgment for a foreclosure of the mortgage.

When the Superior Court has power to amend, the question of costs is entirely in its discretion.

[ Bullard v. Johnson et al., 65 N. C. 436, cited and approved.]

Motion to amend complaint made and heard before Buxton, J., at Spring Term, 1872, of the Superior Court of UNION.

The opinion of the Court contains a sufficient statement of the points involved.

The defendant insisted that his Honor had no power to grant leave to amend; and that if leave were granted, terms must be imposed. His Honor allowed the motion without costs, and the defendant appealed.

J. H. Wilson for the plaintiff .

Battle & Son for the defendant .

BOYDEN, J.

This is the same case that was before the Court at June Term, 1871, 65, N. C. R. 520, in which it was decided that the deed from Christenbury, under whom both parties claimed title, was a mortgage, and not an absolute sale, as claimed by the plaintiff; and upon that ground, a new trial was granted. When the case came on for trial again, in the Court below, the plaintiff moved for leave to amend, by changing his action for the recovery of the land into one for the foreclosure of the mortgage. The motion was allowed, and the defendant appealed from this decision of his Honor, insisting that his Honor had not the power to allow this amendment. We think his Honor, under Sec. 132 C. C. P., not only possessed the discretionary power to allow this amendment, but that it was a fit case for the exercise of the power. The plaintiff had instituted his action believing, that the transaction attending the execution of his deed, taken altogether, constituted a sale, with an agreement for a resale, and his Honor on the trial below so decided; but this Court reversed the decision of his Honor, and declared that, looking at the whole transaction, it constituted a mortgage, and not a sale with an agreement for a re-sale.

The object of the action, in its original form, was to ascertain the plaintiff's...