Rogers v. Timberlake

• Decision Date: 14 April 1943
• Docket Number: 459.
• Parties: ROGERS v. TIMBERLAKE et al.
• Court: North Carolina Supreme Court

25 S.E.2d 167

223 N.C. 59

ROGERS v. TIMBERLAKE et al.

No. 459.

Supreme Court of North Carolina

April 14, 1943

This was an action to enforce the provisions of a judgment rendered in a previous suit between the same parties, wherein it was adjudged that defendant Timberlake held title to certain land in trust for the plaintiff, to be conveyed to plaintiff upon the payment of $1,500.

Plaintiff pleaded this judgment, alleged tender and readiness to pay the $1,500, and demanded conveyance in accord with the terms of the judgment. Defendants admitted the provisions and effect of the judgment alleged, and expressed willingness to convey the land upon payment of the amount fixed by the judgment. However, there was disagreement as to the manner of payment and cancellation of a deed of trust on the land which had been given by defendant Timberlake to his co-defendants subsequent to his acquisition of the title in trust. It is admitted that the money has been paid into court by the plaintiff, and that deed has been executed by the defendant and deposited with plaintiff's counsel.

The defendant Timberlake also claimed the value of improvements which he alleged he had placed on the land. The court sustained objection to testimony as to the value of such improvements, and declined to submit an issue thereon.

Upon the issues submitted there was verdict for plaintiff, and it was thereupon adjudged that the deed executed by defendant be accepted, and that out of the money paid into court the deed of trust should be satisfied and cancelled, and taxes paid so that plaintiff should receive a fee simple unencumbered title to the land.

Defendants appealed.

Yarborough & Yarborough, of Raleigh, for plaintiff.

G.M Beam, of Louisburg, for defendants.

DEVIN Justice.

It was not controverted that the plaintiff was entitled to the conveyance of the land upon the payment of the amount fixed by the former judgment. The question as to the satisfaction and cancellation of the deed of trust, put upon the land by defendant Timberlake subsequent to his acquisition of the title in trust for the plaintiff, about which the parties disagreed, was properly settled by the provision in the judgment below that out of the money already paid into court by the plaintiff the deed of trust and the lien of unpaid taxes should be discharged. Thus, an appropriate end has been put to the cross-firing between the parties as to this part of the controversy.

The defendants, however, assign error in the refusal of the court below to admit testimony and submit an issue as to...