Taylor v. First Nat. Bank

• Decision Date: 30 September 1925
• Docket Number: 165.
• Citation: 129 S.E. 405,190 N.C. 175
• Parties: TAYLOR v. FIRST NAT. BANK OF SNOW HILL ET AL.
• Court: North Carolina Supreme Court

129 S.E. 405

190 N.C. 175

TAYLOR v. FIRST NAT. BANK OF SNOW HILL ET AL.

No. 165.

Supreme Court of North Carolina

September 30, 1925

Appeal from Superior Court, Greene County; Barnhill, Judge.

Action by J. P. Taylor against First National Bank of Snow Hill and others. From a judgment for defendants, plaintiff appeals. Reversed.

Evidence as to intentions of parties as to payment held question for jury.

Langston Allen & Taylor, of Goldsboro, for appellant.

J. Paul Frizzelle, of Snow Hill, for appellees.

CLARKSON J.

(1) On September 18, 1918, B. W. Pate and wife executed and delivered to plaintiff, J. P. Taylor, a note for $7,000 balance of purchase money on land and secured same by a mortgage made on the land. This mortgage was filed for registration on April 17, 1920, and recorded in the register of deeds office for Greene county, N. C., in Book 125, p 452.

(2) On March 24, 1919, B. W. Pate and wife executed and delivered a note, and secured same by a mortgage on the same land, to H F. Edwards, administrator, for $1,541.16. This mortgage was filed for registration and recorded on March 25, 1919, in the register of deeds office for Greene county, N. C., in Book 116, p. 289.

(3) The First National Bank of Snow Hill, the defendant in this action, on the 7th of April, 1919, purchased the H. F Edwards, administrator, note, secured by mortgage before mentioned, paying him the sum of $1,636.70.

(4) On December 20, 1920, B. W. Pate, who was indebted to the said defendant, the First National Bank of Snow Hill, in certain amounts, to secure said indebtedness of $3,364.13, made two notes secured by deed in trust (his wife joining in), one for the Edwards debt, including interest $1,710.16, and the other the unsecured bank debt for the sum of $3,364.13. This deed in trust was immediately filed for record in the office of the register of deeds for Greene county and recorded in Book 131, p. 204.

To the above facts the parties are agreed, but on the record plaintiff contends that certain facts and circumstances show a settlement between the parties of the Edwards debt; that the bank took a deed in trust from B. W. Pate and wife and included in it a note for $1,710.16, the Edwards debt, secured by prior mortgage, and delivered the prior mortgage to the mortgagor; that the bank record cash journal of December 21, 1920, is as follows:

"No. 3920--1636.70 and 5994 shows the new note from same party--from Mr. B. W. Pate--1710.16."

The cashier at the time of the defendant bank, testified, in part:

"The bank records offered in evidence show the Edwards note paid at $1,636.70 and show a new note given by B. W. Pate and put in record of that date as a bill receivable. Our records show the old note paid and a new loan of the same date to the party giving the renewal. In taking renewals, we retain the original note; we do not cancel the old note, but run it through the records in order to take the renewal into account.

Q. If a person owed you a note maturing to-day and he went in and renewed it, how would you handle it? Answer: On the debit side of the journal as a loan made, and on the credit side as a loan paid."

There were other facts and circumstances substantiating plaintiff's contention. On the other hand, defendant contends that the facts and circumstances show that there was no settlement as to the Edwards debt; that the note secured by the mortgage was never delivered to Pate, the mortgagor; that Pate, who made the note to Edwards that defendant bank purchased, and who owed the debt, testified:

"Q. Was there any agreement they would cancel and surrender that note to you? Answer: No, sir."

There were other facts and circumstances substantiating defendant's contention.

At the close of plaintiff's evidence, "defendant moved for judgment as of nonsuit and declared the First National Bank the holder of the first mortgage and the motion allowed," and the plaintiff duly excepted and assigned error.

We will treat the nonsuit merely as declaring what is known as the "Edwards note and mortgage" a first lien. From the record we think the court below was in error in granting the nonsuit. The evidence was conflicting. The matter should have been left to the jury to determine...