Stancill v. Spain

• Decision Date: 29 September 1903
• Citation: 133 N.C. 76,45 S.E. 466
• Parties: STANCILL. v. SPAIN et al.
• Court: North Carolina Supreme Court

45 S.E. 466

133 N.C. 76

STANCILL.

v.SPAIN et al.

Supreme Court of North Carolina.

Sept. 29, 1903.

MORTGAGES — FORECLOSURE — GRANTEES OF EQUITY OF REDEMPTION—DEATH OF MORTGAGOR—HEIRS — DEVISEES — PARTIES — AMBIGUOUS DESCRIPTION — ASSIGNMENT OF NOTES — PAROL EVIDENCE — LIMITATIONS — PLEADING.

1. Where land is mortgaged, and thereafter the mortgagor conveys his equity of redemption in a part thereof by deed, the ultimate holders of such equity of redemption are necessary parties to an action to foreclose the mortgage, they being entitled to set up not only any defenses available to the mortgagor, but also to insist that the mortgagee shall exhaust the remainder of the land mortgaged before resorting to the part conveyed to them.

v 1. See Mortgages, vol. 35, Cent. Dig. § 1283.

2. Where a mortgagor conveyed his equity of redemption in a portion of the mortgaged premises, the grantees thereof, when made parties to a suit to foreclose the mortgage, are entitled to plead Code 1883, § 152 (3), providing a limitation of 10 years as a defense.

3. Where, pending a suit to foreclose a mortgage, the mortgagee died, her heirs at law or devisees became necessary parties to the action.

4. Where, in an action to foreclose a mortgage securing a note, there was no evidence that the note was lost, or that an alleged transfer was in the handwriting of the payee, it was error to permit defendant to show a written assignment of the note by parol.

5. Where the description of a mortgage was ambiguous, parol evidence of declarations of the mortgagee, since deceased, were admissible for the purpose of showing that the land in controversy was not understood or intended by the parties to be included in the mortgage.

6. Persons holding possession of mortgaged property in subordination to the mortgage cannot acquire title to the mortgaged property by adverse possession.

7. Code, § 152 (3), prescribing a 10-year limitation for actions to foreclose a mortgage, cannot be availed of under the general issue, but must be specially pleaded.

Appeal from Superior Court, Pitt County; Ferguson, Judge.

Action by G. A. Stancill against Alafair Spain and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Fleming & Moore, for appellant.

Skinner & Whedbee, for appellees.

CONNOR, J. This is an action for the recovery of the possession of a tract of land described in the complaint by metes and bounds, "containing by estimation 122 acres, more or less, and being a part of the land known as the 'Bensboro Farm.' " The defendants denied that plaintiff was owner of the land, or that they wrongfully withheld possession thereof. The general issue as toplaintiff's ownership was submitted to the jury. There was evidence tending to show that Peyton Atkinson on July 14, 1847, purchased the land in controversy from one Rives; that upon his death, in a proceeding for partition of his lands, a tract known as the "Bensboro Lands, " containing 1, 387 acres, was allotted to his son Benjamin S. Atkinson; that on February 5, 1878, the said Benjamin S. Atkinson executed a mortgage conveying the Bensboro lands, containing 1, 437 acres, to Mrs. S. V. Whitehead, for the purpose of securing the payment of a note of $19,200, to be due January 1, 1883; said mortgage was duly recorded; that Benjamin S. Atkinson and his wife on the___day of April, 1887, conveyed the land in controversy to Marcellus Moore; that by successive conveyances the title of Moore vested in the feme defendant; that Benjamin S. Atkinson died in the year 1884; that at March term, 1895, Pitt superior court, an action was instituted by S. V. Whitehead against L. C. King (widow of B. S. Atkinson, who had intermarried with one King), and the children of said B. S. Atkinson. Neither Marcellus Moore nor those claiming under him were made parties to this action. Mrs. Whitehead died pending the action, and R. L. Davis, her executor, was made party plaintiff. At December term, 1897, of said court a decree was passed directing a sale of the land described in the mortgage, and pursuant thereto B. F. Tyson, commissioner, sold and conveyed the same to plaintiff on March 17, 1899. The description in the deed was the same as that in the mortgage. Mrs. S. V. Whitehead was at the date of said mortgage, and at all times thereafter until her death, a feme covert, living separate and apart from her husband. Plaintiff introduced evidence tending to show that the land in controversy was a part of the Bensboro lands. Defendant introduced testimony tending to show that it was not a part of the said lands, and that it was known as the "Rives Tract" There was evidence tending to show that Marcellus Moore was, by his tenants, at some time after his purchase from Benjamin S. Atkinson, in possession of the land in controversy. There was also evidence tending to show that for a year or two no one was in the actual possession thereof. The plaintiff interposed a large number of exceptions to the rulings of his honor upon the admission of testimony, many of which, in the view which we take of the case, are immaterial. Whether the mortgage executed by Benjamin S. Atkinson to Mrs. Whitehead included the land in controversy is a question of fact which was submitted to the jury under instruction by the court upon the general issue. We cannot say whether their negative response was based upon the acceptance of the defendant's contention in this respect, or was reached by their conclusion in regard to other questions submitted to the jury by the court. While this question was not upon the pleadings presented in the form of an issue as defined by section 323 (1) of the...