Thomas v. Myers

• Decision Date: 22 September 1948
• Docket Number: 105
• Parties: THOMAS et ux. v. MYERS et al.
• Court: North Carolina Supreme Court

49 S.E.2d 478

229 N.C. 234

THOMAS et ux. v. MYERS et al.

No. 105

Supreme Court of North Carolina

September 22, 1948

This is a civil action instituted 30 April, 1946, by the plaintiffs to remove a cloud from their title, consisting of a deed of trust executed 24 December, 1925 securing a note of even date therewith, in the sum of $225 payable one year after date, which instrument is duly recorded in the office of the register of deeds of Madison County.

It is disclosed by the evidence offered in the trial below, that the plaintiff, Albert Thomas, for a valuable consideration on 2 December, 1943, obtained a deed with full covenants and warranty to the premises upon which the above deed of trust purports to be a lien. This deed was duly recorded in Madison County 29 July, 1944. It also appears that no affidavit has ever been filed with the register of deeds of Madison County, or entry made on the margin of the record in his office, stating the amount still due on the note secured by the above deed of trust, as provided by G.S. s 45-37, subd. 5.

The defendant Myers offered evidence to the effect that he is the owner and holder of the deed of trust and note in question, that the note has not been paid in full and that payments have been made thereon within ten years from the date this action was instituted.

His Honor submitted issues to the jury to determine what balance, if any, is due on the note. The issues were answered in favor of the defendants. Accordingly the Court entered judgment against the plaintiffs and appointed a commissioner to sell the lands described in the deed of trust. Plaintiffs appeal and assign error.

Calvin R. Edney, of Marshall, for plaintiffs.

Carl R. Stuart, of Marshall, for defendants.

DENNY Justice.

The plaintiffs except and assign as error the failure of the trial judge in his charge to the jury, to declare and explain the law arising upon the pleadings and the evidence relative to the conclusive presumption that the note secured by the above deed of trust has been paid as against creditors and purchasers for value, G.S. s 45-37, subd. 5. We think the exception is well taken and must be upheld.

The Public Laws of 1923, Chapter 192, now G.S. s 45-37, subd. 5 provides: 'The conditions of every mortgage, deed of trust or other instrument securing the payment of money shall be conclusively presumed to have been complied with or the debts secured thereby paid as against creditors or purchasers for a valuable consideration * * * from and after the expiration of fifteen years from the date when the conditions of such instrument by the terms thereof are due to have been complied...