Thomas v. Carteret County
Decision Date | 09 November 1921 |
Docket Number | 180. |
Parties | THOMAS ET AL. v. CARTERET COUNTY ET AL. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Carteret County; Horton, Judge.
Action by T. M. Thomas and others against Carteret County and others. From the judgment, plaintiffs and defendant Mace appeal. Modified and affirmed.
See also, 180 N.C. 109, 104 S.E. 75.
In action to have determined the extent of liability on a note and mortgage executed to plaintiffs' nephew and by him turned over to the county whose funds he had misappropriated plaintiffs' admission in open court that the county was entitled to judgment for the amount misappropriated subject to credit for such amounts as might be found against a surety was at variance with the theory of conditional delivery and an abandonment of plaintiffs' contention that the mortgage was delivered on condition that other securities were to be exhausted before the mortgage took effect.
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:
(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:
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:
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.
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 having been delivered to the mortgagee and by him in turn assigned to Carteret county--it is not altogether clear or...
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