Rosemary Mfg. Co. v. Jefferson

• Decision Date: 27 September 1939
• Docket Number: 112.
• Citation: 4 S.E.2d 434,216 N.C. 230
• Parties: ROSEMARY MFG. CO. v. JEFFERSON et al.
• Court: North Carolina Supreme Court

4 S.E.2d 434

216 N.C. 230

ROSEMARY MFG. CO. v. JEFFERSON et al.

No. 112.

Supreme Court of North Carolina

September 27, 1939

Leon T. Vaughan, of Nashville, for appellants.

Allsbrook & Benton, of Roanoke Rapids, and Battle & Winslow, of Rocky Mount, for appellee.

DEVIN Justice.

The plaintiff derived its title to the land under a deed from the Roanoke Bank & Trust Company, dated December 29, 1936. The Roanoke Bank & Trust Company purchased at the foreclosure sale under the power contained in a deed of trust executed by defendants to W. L. Long, Trustee, dated December 19, 1923. The trustee's deed, dated July 1, 1936, recited that the foreclosure sale was occasioned by default having been made in the payment of the debt secured.

The defendants set up two defenses, first, that the power of sale was barred by the statute of limitations, and, second, that the debt had been paid.

It was admitted that defendants had executed the deed of trust to secure their four notes of $417.50 each, under seal, due and payable on the 19th days of December, 1924, to 1927 inclusive, the due dates of the last two notes being within the period of ten years prior to the date of foreclosure and deed. It was also admitted that payments were made on these last notes as late as 1932. Hence the court properly instructed the jury if they found the facts to be as shown by the evidence to answer the issue as to the statute of limitations in favor of the plaintiff.

The four notes were originally given to the Schlicter Lumber Co. and were endorsed by the payee to the Rosemary Banking Company. Two of the notes were paid, and the last two were transferred to and held by the Roanoke Bank & Trust Company for several years prior to and at the time of the foreclosure. These notes were produced at the trial by the cashier of the Roanoke Bank & Trust Company and showed a balance due thereon at date of foreclosure of more than $900.

The defendants' testimony in support of their allegation of payment was vague and uncertain, and nearly all of the payments alleged were testified to have been made to R. P Todd. Todd was not shown to have had any connection with the bank except as borrower, and no proper authority to receive payments for the bank was shown. The plaintiff contended his relation to the transaction was that of holder of the first two notes. In any event, the burden was on the defendants to show payment in full to the holder of...