Stancill v. Norville
| Decision Date | 02 November 1932 |
| Docket Number | 169. |
| Parties | STANCILL et al. v. NORVILLE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Cranmer, Judge.
Controversy without action between B. H. Stancill and others and J. B Norville and others, on an agreed statement of facts. From an adverse judgment, J. B. Norville appeals.
Error.
Controversy without action upon an agreed statement of facts, among which are the following:
On June 16, 1922, B. H. Stancill made a written application to the Chickamauga Trust Company, of Raleigh, agent of the Prudential Life Insurance Company of America, for a loan of $5,000 for a term of ten years. The loan was approved, and on July 11, 1922, Stancill executed a note for this sum payable to the Prudential Life Insurance Company of America, or its order, on or before ten years from the date thereof in annual installments, and at the same time, in order to secure the note and interest, executed to the Chickamauga Trust Company as trustee for the insurance company a deed of trust on 200 acres of land situated in Pitt county, which was duly registered in said county on July 20, 1922.
At this time there appeared of record in the office of the register of deeds of Pitt county the following two deeds of trust covering the same tract of land:
(a) A deed of trust from B. H. Stancill to Henry C. Bourne trustee for Pinetops Banking Company, dated January 1 1922, securing a note in the sum of $4,160.33, due January 1, 1923, the said deed of trust having been filed for record February 13, 1922, and recorded in Book H-14, page 615.
(b) A deed of trust from B. H. Stancill to O. D. Ingram, trustee for Mrs. G. A. Stancill, dated March 16, 1922, filed for record March 18, 1922, and recorded in Book K-14, page 72, securing a note in the sum of $3,500 due January 1, 1924.
At the same time there appeared of record in the office of the clerk of the superior court of Pitt county in judgment docket 25, page 232, a judgment in favor of J. B. Norville and against B. H. Stancill and J. M. Norville, in the sum of $2,546.46, with interest from March 1, 1922, said judgment appearing to have been docketed on June 22, 1922, and being a transcript of judgment from Edgecombe county.
B. H. Stancill borrowed the money from the Prudential Company for the purpose of paying the lien held by the Pinetops Banking Company, and the Prudential Company made the loan to Stancill upon his agreement to execute a deed of trust on the premises, expecting said deed of trust to be a first lien thereon.
From the proceeds of the loan made by the Prudential Company to Stancill, the sum of $4,160.33 was paid over to Pinetops Banking Company on July 20, 1922, whereupon the note and deed of trust held by said Pinetops Banking Company were duly marked paid and satisfied and the instruments were thereupon exhibited to the register of deeds and the following entry made upon the record:
On the same date, to wit, July 20, 1922, the deed of trust from B. H. Stancill to O. D. Ingram, trustee for Mrs. G. A. Stancill, was exhibited to the register of deeds of Pitt county, whereupon similar cancellation of record was made.
The Prudential Company, at the time of closing said loan, had no actual knowledge of the Norville judgment other than the constructive notice given by the records thereof, and did not receive any actual notice of said judgment until just a short time before the institution of this suit.
B. H. Stancill has made certain payments on the indebtedness held by the Prudential Company, and there is now due on this indebtedness a total balance of $4,250, as of July 11, 1929. The Prudential Company has declared the entire indebtedness due, and, under proper accelerating provisions in the note and deed of trust, the power of sale therein is now operative.
No sums whatever have been paid on the Norville judgment since its rendition, and the full amount of principal, interest, and cost thereon is now due.
Summons in the cause of J. B. Norville v. B. H. Stancill and J. M. Norville was issued April 22, 1922, returnable before the clerk on May 8, 1922, and judgment in said cause was rendered by the clerk of the superior court of Edgecombe county by default final on June 5, 1922, for the failure of the defendants to file any answer thereto.
On July 20, 1922, the note due Pinetops Banking Company was paid in full. The summons in this action was issued May 3, 1929, and defendant duly pleaded C. S. § 441, as a bar to this action.
The defendant Norville duly issued execution on his judgment against Stancill in April, 1929, whereupon plaintiffs instituted this suit and obtained a restraining order on July 5, 1929, restraining sale under execution.
Upon the facts agreed it was adjudged that the Norville judgment could not be attacked collaterally for irregularities; that the Prudential Life Insurance Company of America is entitled to have the deed of trust to the Pinetops Banking Company revived and to be subrogated to the extent of the amount applied thereon by the insurance company with interest from the date of payment, not to exceed the actual balance Stancill owes the insurance company; also that the land described in the deed of trust is impressed with a first lien in favor of the insurance company in the amount of $4,250, with interest from July 11, 1929, and that it be sold by commissioners appointed by the court.
Henry C. Bourne, of Tarboro, for appellant.
W. G. Mordecai, of Raleigh, and Harding & Lee, of Greenville, for appellees.
The ultimate purpose of the action is to revive the two deeds of trust executed by B. H. Stancill to Henry C. Bourne and O. D Ingram respectively as trustees and to subrogate the plaintiffs to the rights of the beneficiaries who were creditors of the grantor. The plaintiffs seek equitable relief on the ground of mistake; the...
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Willis v. Willis
... ... 72 A. L. R. page 729, note. Of ... course, the three-year statute if pleaded is also applicable ... C. S. § 441(9); Stancill v. Norville, 203 N.C. 457, ... 166 S.E. 319. We see no evidence of mutual mistake ... In ... Black on Rescission and ... ...