Thomas v. Carteret County, (No. 180.)

• Citation: 109 S.E. 384
• Decision Date: 09 November 1921
• Docket Number: (No. 180.)
• Court: United States State Supreme Court of North Carolina
• Parties: THOMAS et al. v. CARTERET COUNTY et al.

109 S.E. 384

THOMAS et al.
v.
CARTERET COUNTY et al.

(No. 180.)

Supreme Court of North Carolina.

Nov. 9, 1921.

Walker, J., dissenting.

Appeal from Superior Court, Carteret County; Horton, Judge.

Action by T. M. Thomas and others against Carteret County and others. From the judg ment, plaintiffs and defendant Mace appeal. Modified and affirmed.

See, also, 180 N. C. 109, 104 S. E. 75.

Civil action to determine the extent of plaintiffs' liability on a certain note and mortgage executed and delivered to Thomas Thomas, and by him given as security to the county of Carteret. A brief history of this litigation is set out in the judgment of the superior court, entered at the June term, 1921:

"This cause coming on to be heard before his honor, J. Loyd Horton, judge, and a jury, and it appearing to the court that at the June term, 1020, of said court this cause was tried before his honor G. W. Connor, judge, and a jury, and at said term the following issues, with their answers, were submitted and found by the jury as follows, to wit:

"'(1) In what amount, if any, is Thomas Thomas, trustee of the courthouse bond sinking fund, indebted to Carteret county? Answer: $13,236.49, with interest.

"'(2) What sum, if any, is Carteret county entitled to recover of the United States Fidelity & Guaranty Company as surety for Thomas Thomas, treasurer of Carteret county? Answer: Nothing.

"'(3) What sum, if any, is Carteret county entitled to recover of W. A. Mace, administrator of Alonzo Thomas, deceased, on the bond of Thomas Thomas, trustee? Answer: $5,000.

" '(4) Were the note and mortgage of T. M. Thomas and wife, Laura, executed to Thomas Thomas and assigned to Carteret county, taken and accepted with the understanding and agreement that the same should be used only after the other securities held by the county for Thomas Thomas, trustee, had been exhausted, as alleged in the complaint? Answer: No.

"'(5) What sum, if any, is Carteret county entitled to recover of T. M. Thomas and wife on account of the note for $13,500 secured by mortgage assigned to said county by Thomas Thomas? (Not answered.)'

"And it further appearing to the court that the presiding judge of said court in his discretion set aside the answer to the fourth issue and failed to answer the fifth issue, which he instructed the jury the court would answer after they had answered the other issues, and permitted the plaintiffs to file a reply, and further pleading upon which the following issues were submitted and answered at this, the June term, 1921, of the superior court of Carteret county, before his honor Judge Horton and a jury, as follows, to wit:

" '(4) In what amount, if any, is W. A. Mace, administrator, etc., of Alonzo Thomas, indebted to Carteret county on account of the term of said Alonzo Thomas as treasurer of Carteret county, beginning on the first Monday in December, 1914, and ending at the death of said Alonzo Thomas on the 18th day of November. 1915? Answer: $5,000 and interest.

" '(5) What amount, if any, is Carteret county entitled to recover of defendant United States Fidelity & Guaranty Company as surety for said Alonzo Thomas as treasurer of Carteret county for said term, beginning on the first Mon-

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day in December, 1914? Answer: $8,236.49, and interest.

"'(6) Were the note and mortgage given to Thomas Thomas by plaintiff given as an accommodation paper to said Thomas Thomas, as alleged by plaintiffs? Answer: Yes.

" '(7) Is the defendant Carteret county a holder for value as between it and the plaintiffs of the $13,500 note and mortgage made by plaintiffs? Answer: Yes.

"'(8) Were the note and mortgage of plaintiffs executed to Thomas Thomas and assigned to Carteret county taken and accepted with the understanding and agreement that the same should be used by the county only after the bonds of said Thomas Thomas and of said Alonzo Thomas had been exhausted, as alleged by plaintiffs, and then applied to the balance unpaid due said county on account of the Thomas Thomas trusteeship of the sinking fund and the treasurership of said Alonzo Thomas? Answer: Yes.

" '(9) What sum, if any, is Carteret county entitled to recover of plaintiffs on account of the note for $13,500 secured by mortgage assigned to said county by Thomas Thomas? A. $13,234.49. with interest from October 1, 1916, to be credited with $5,000 and interest on same from June 13, 1921, due by the estate of Alonzo Thomas as surety for Thomas Thomas, trustee of the courthouse bond sinking fund, the last issue having been answered by the court by consent of all parties that the court might answer same after verdict as a matter of law.'

"It is now considered and adjudged by the court that the answers to the issues numbered 4 and 5 be, and are on motion of defendants, other than Carteret county, set aside, as a matter of law, for the reason that the jury found at the June term, 1920, by its answer to the first issue that Thomas Thomas, trustee of the courthouse bond fund, received and misappropriated the funds.

"It is further ordered and adjudged by the court that Carteret county recover nothing against United States Fidelity & Guaranty Company as surety, and that said defendant United States Fidelity & Guaranty Company go without day and recover its costs.

"It is further considered and adjudged by the court that Carteret county recover of W. A. Mace, administrator of the estate of Alonzo Thomas, deceased, the sum of $5,000, with interest from June 13, 1921, as surety on the bond of Thomas Thomas, trustee of the courthouse bond sinking fund, said Mace, administrator, having tendered judgment for said amount in open court, said amount to be credited on the amount due Carteret county by T. M. Thomas and wife, Laura P. Thomas.

"It is further considered and adjudged by the court that Carteret county recover of T. M. Thomas and wife, Laura Thomas, the sum of $13,236.49, with interest from October 1, 1916, at the rate of 6 per cent, per annum, to be credited with the sum of $5,000 and interest on same from June 13, 1921, due by Mace, administrator of Alonzo Thomas, deceased, the said Alonzo Thomas having been surety on the bond of Thomas Thomas, trustee of the courthouse bond sinking fund.

"It is further considered and adjudged that the note and mortgage given by T. M. Thomas and wife, Laura P. Thomas, to Thomas Thomas and assigned by Thomas Thomas to Carteret county, be foreclosed to pay said indebtedness, and that Luther Hamilton and Leslie Davis be and are appointed commissioners to sell the lands described in the mortgage of T. M. Thomas and wife, Laura P. Thomas, to Thomas Thomas, recorded in the office of the register of deeds of Carteret county in Book 22, page 339, after due advertisement and in accordance with the law governing sales of real estate under execution.

"It is ordered that such advertisement shall not be made until 60 days after the adjournment of this court, and then only in the event plaintiffs shall not have fully discharged the liability of this judgment.

"It is further adjudged that defendant Mace, administrator, pay the costs of the action, to be taxed by the clerk.

"J. Loyd Horton, Judge Presiding."

Upon the second trial the following admission was made in open court and entered of record:

"Counsel for plaintiffs having so admitted in open court, the court finds the following facts:

"In this case the plaintiffs, T. M Thomas and wife, Laura Thomas, agree that, pursuant to the issues found in the trial of this case before Hon. George W. Connor, judge, at the June term, 1920, the defendant, Carteret county, is entitled to a judgment against the plaintiffs, T. M. Thomas and wife, Laura Thomas, in the sum of $13,236.49, with interest, said judgment to be credited for such amounts as had been or would be found by the jury in the case that the defendant Mace, administrator, and others are indebted to said Carteret county."

His honor set aside the verdict on the fourth and fifth issues, as a matter of law, and rendered the judgment appearing above. Plaintiffs and defendant Mace, administrator, appealed.

Ward & Ward, of New Bern, H. S. Ward, of Washington, N. C, and Luther Hamilton, of Morehead City, for appellants Thomas.

Julius F. Duncan, of Beaufort, for appellant Mace.

D. L. Ward, of New Bern, and Julius F. Duncan, of Beaufort, for appellee United States Fidelity & Guaranty Co.

CLARK, C. J. The case at bar has been tried twice in the superior court, and this is the second appeal here. Former opinion reported in 180 N. C. 109, 104 S. E. 75. It is doubtful if the allegations of the complaint and the wording of the eighth issue, by correct interpretation, amount to a charge and finding that plaintiffs' note and mortgage were not intended to take effect absolutely and unconditionally at the time of their delivery It was only upon the allegation of a conditional delivery that plaintiffs were permitted to show the "understanding and agreement" upon which the note and mortgage were "taken and accepted." Indeed, on the facts of the present record—the mortgage

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having been delivered to the mortgagee and by him in turn assigned to Carteret county—it is not altogether clear or certain that this position was ever open to the plaintiffs. Buchanan v. Clark, 164, N. C. 56, 80 S. E. 424; Huddleston v. Hardy, 164 N. C. 210, 80 S. E. 158; Bond v. Wilson, 129 N. C. 325, 40 S. E. 179; note 16 L. R. A. (N. S.) 941. But, as the point is not raised by any specific exception, we shall not pass upon it now. It is unnecessary for us to do so.

The principle applicable to a conditional delivery has been sanctioned and approved by us in a number of carefully considered decisions; and it is now very generally recognized in this and other jurisdictions. Far-rington v. McNeill, 174 N. C. 420, 93 S. E. 957; Bowser v. Tarry, 156 N. C. 35, 72 S. E. 74: Gaylord v. Gaylord, 150 N. C. 222, 63 S. E. 1028; Hughes v. Crooker, 148 N. C. 318, 62 S. E. 429, 128 Am. St. Rep. 606; Aden v. Doub...