Stanback v. Haywood

• Decision Date: 08 April 1936
• Docket Number: 382.
• Citation: Stanback v. Haywood, 209 N.C. 798, 184 S.E. 831 (N.C. 1936)
• Parties: STANBACK v. HAYWOOD et al.
• Court: North Carolina Supreme Court

184 S.E. 831

209 N.C. 798

STANBACK v. HAYWOOD et al.

No. 382.

Supreme Court of North Carolina

April 8, 1936

Appeal from Superior Court, Montgomery County; Clement, Judge.

Suit by T. M. Stanback, administrator of the estate of T. C. Ingram deceased, against Annie Haywood and others, to foreclose a mortgage.From an adverse judgment, plaintiff appeals.

Reversed and new trial ordered.

Armstrong & Armstrong, of Troy, for appellant.

R. T Poole, of Troy, M. C. Lisk, of Mt. Gilead, and Lee Smith and R. L. Smith & Sons, all of Albemarle, for appellees.

SCHENCK Justice.

This was a suit to foreclose a mortgage for $16,000 given to the plaintiff's intestate by the defendants to secure eight notes for $2,000 each, four of which have been paid, and to collect any deficiency after application to the debt of the amount received from the foreclosure sale.

The defendants in their answer admitted the execution of the notes and mortgage referred to in plaintiff's complaint and in their further defense alleged that contemporaneously with the execution of said notes and mortgage a parole agreement was entered into between them and the plaintiff's intestate to the effect that in the event the defendants were unable to pay the balance due on said notes, said intestate would not foreclose said mortgage, but would accept in full satisfaction of any such balance due a reconveyance to him of the land described in the mortgage securing the notes, which were given for the purchase price of said land.

The court submitted the following issues:

"1.Did the defendants execute the notes and mortgage set out in the complaint?

2.Did T. C. Ingram, the original plaintiff, agree at the time of the consummation of the trade with the defendants that he would, in the event defendants were unable to pay the notes given for said land, accept the land in payment of said notes, as alleged in the answer?

3.What amount, if any, are the defendants indebted to the plaintiff?"

To the submission of the foregoing issues, the plaintiff reserved exception.

The jury answered the first issue "Yes," the second issue "Yes," and the third issue, "None except the land," whereupon the court entered judgment to the effect that the heirs at law of the plaintiff's intestate were the owners and entitled to the possession of the land described in the complaint, and directing the defendants to make conveyance accordingly, and that the defendants were entitled to have the notes secured by the mortgage canceled and directing the plaintiff to surrender the same.To the signing of this judgment, the plaintiff reserved exception.

The exception to the issues submitted should have been sustained for the reason that, under the issues submitted, no requirement was made of the defendants to prove, and no opportunity afforded the plaintiff to disprove, that the defendants were unable to pay the balance due on the notes.This was a vital issue between the defendants and the plaintiff, concerning which there was no admissions in the pleadings or record.

"Section 395 of The Code [C.S. § 584] is mandatory, and binding equally upon the court and counsel, and it is the duty of the trial judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings.In the absence of such issues, or equivalent admissions of record sufficient to reasonably justify a judgment rendered thereon, this court will order a new trial."Syllabus 1 of Tucker v. Satterthwaite,120 N.C. 118, 27 S.E. 45.

"It is within the sound discretion of the trial judge to determine what issues shall be submitted, and to frame them, subject to the restrictions-First, that only issues of fact raised by the pleadings are submitted; secondly, that the verdict constitutes a sufficient basis for a judgment; and, thirdly, that it does not appear that a party was debarred, for want of an additional issue or issues, of the opportunity to present to the jury some view of the law arising out of the evidence."Redmond v. Chandley,119 N.C. 575, 26 S.E. 255.See, also, Merchants' Nat. Bank v. Carolina Broom Co.,188 N.C. 508, 125 S.E. 12.

The exception to the judgment should have been sustained, since the verdict, in the absence of any finding by the jury that the defendants were unable to pay the balance due on the notes, was not sufficient to support the judgment.

"The insufficiency of the verdict-'the facts found'-to support the judgment is a defect upon the face of the record proper, which is presented for review, since the appeal is of itself an exception to the judgment.The omission of a vital issue is not cured by the charge of the court, for there is no finding by the jury."Strauss v. Wilmington,129 N.C. 99, 39 S.E. 772.

The issues submitted to the jury were insufficient to support the judgment for the reason that they were only partially determinative of...