Walker v. Mebane

• Decision Date: 28 February 1884
• Citation: 90 N.C. 259
• Court: North Carolina Supreme Court
• Parties: JAMES WALKER v. C. P. MEBANE and others.

90 N.C. 259

JAMES WALKER

v.C. P. MEBANE and others.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION to foreclose a mortgage tried at June Term, 1883, of NEW HANOVER Superior Court, before McKoy, J.

On the 8th day of January, 1871, Maria A. Mebane was indebted to the Mechanics' Building and Loan Association in the sum of $3,403. This debt was created with the assent of her husband, James A. Mebane, and to secure the payment thereof the said Maria A., with the like assent of her husband, executed to this corporation a mortgage of a lot or parcel of land situate in the city of Wilmington. This mortgage contained a power of sale, authorizing the mortgagee to sell the land in the contingencies therein specified.

In the month of January, 1874, the defendant, Charles P. Mebane, assumed the payment of all such sums of money as should thereafter be due from Maria A. Mebane to the said corporation, on account of the indebtedness and liabilities embraced by the said mortgage; and he executed to her a bond to indemnify and save her harmless as to any further payments of money on her part to the said corporation on account of the indebtedness secured by the mortgage. The corporation was not a party to this agreement between Maria and Charles Mebane, and had nothing to do with it.

At the same time the said James A. Mebane and Maria A., his wife, executed to the said Charles P. Mebane two promisory notes, one for $4,000 and the other for $3,521.37. The note for $4,000 was the supposed amount that would be due by Maria on account of the said mortgage debt, and it was given to indemnify Charles P. Mebane against whatever payments he might make to the corporation on account of its claims against the said Maria, and to secure these two notes Maria A. Mebane and her husband executed to Charles P. Mebane a second mortgage upon the land embraced by the mortgage above mentioned.

Thereupon Charles P. began and continued to pay the monthly sums of money due to the said corporation, that under its mortgage were to be paid by Maria A. Mebane, until about July, 1875, when he ceased to pay, as he had agreed with Maria A. Mebane to do.

In February, 1876, however, Charles P. Mebane proposed to the corporation a ““compromise” of the debt due to it from Maria A. Mebane. This proposition resulted in an adjustment and settlement of the debt, by which Charles P. agreed to give and did give to the company his three promissory notes, each for $416.67, dated March 1st, 1876, payable to the order of said corporation, one due in two months, one in four months and one in six months, with interest from date at the rate of eight per cent. per annum, and these notes were so executed and accepted by the corporation “as an adjustment and settlement of the amount claimed to be due from Maria A. Mebane.”

James A. Mebane died intestate on the 17th of August, 1874, and the defendant, Edward Cantwell, became his administrator.

Charles P. Mebane assigned the notes given him, one for $4,000 and the other for $3,521.37, by Maria A. Mebane, to his wife, Martha C., in October, 1874.

The plaintiff purchased from the corporation for value and before maturity two of the notes given to it by Charles P. Mebane, and he seeks by this action to subject the land mortgaged by Maria A. Mebane and her husbaud to the said corporation to the payment of these notes.

The defendant, Charles P. Mebane, and his wife, Martha C., insist that the said mortgage executed by Maria A. and her husband to the corporation was paid and discharged by the said Charles P. Mebane at the instance of the said Maria A.; that the land mortgaged to him to secure the notes executed to him by the said Maria A., with the assent of her husband, and which he assigned to his wife, was duly sold to pay said debts.

Maria A. Mebane at first pleaded in this action, insisting in her answer that the mortgage she executed was paid and discharged. She afterwards, however, withdrew her answer and allowed judgment to go against her.

On the trial the following issues were submitted to the jury at the instance of the plaintiff:

1. “Did C. P. Mebane execute the three notes mentioned in the complaint?” To this issue the jury responded “Yes.”

2. Did the Building Association assign and transfer two of the notes to the plaintiff for value received?” To this issue the jury responded “Yes.”

3. “Was there any agreement that the notes executed by C. P. Mebane were to be in payment and satisfaction of the debt due by Maria A. Mebane to the Building Association, and of the mortgage securing the same?” To this issue the jury responded, “Yes, as to the debt; no, as to the mortgage.”

The following issues were submitted to the jury at the instance of the defendant:

1. “What amount, if any, did Maria A. Mebane owe the Building Association on the first of March, 1876?” To this issue the jury responded “Nothing.”

2. “Did Maria A. Mebane authorize C. P. Mebane to execute the three promissory notes executed by C. P. Mebane to the Building Association, and to bind her real estate under the mortgage executed by her to the Building Association for the payment of the same?” The jury answer “No.”

3. “Did Maria A. Mebane at the time said notes were executed by C. P. Mebane to the Building Association, to-wit, 1st March, 1876, know that C. P. Mebane had executed the same?” The jury answered “No.”

4. Did Maria A. Mebane execute to C. P. Mebane a mortgage dated January, 1874, to secure the amount of money C. P. Mebane might pay to the Building Association for her, on account of her indebtedness to the association, and did she exeecute two promissory notes payable to C. P. Mebane, one for $4,000 and the other for $3,251.39, one of which, to-wit, the one for $4,000, was the supposed amount that would be due by Maria A. Mebane to the Building Association, and did C. P. Mebane assign the said notes to Martha C. Mebane in October, 1874? The jury answer “Yes.”

5. “Did Martha C. Mebane have any knowledge of the execution of those promissory notes for $416.67, each executed by C. P. Mebane to the Building Association?” The jury answer “No.”

6. “Would the three notes for $416.67 each, executed by C. P. Mebane to the Building Association, have been paid if presented for payment at maturity, and was C. P. Mebane at maturity of said notes able to pay the same?” The jury answer “Yes.”

7. “Was all the interest of Maria A. Mebane in the tract of land mentioned in the complaint sold since the pending of this suit under a decree of the superior court of New Hanover county for a foreclosure of a mortgage executed by M. A. Mebane and J. A. Mebane to C. P. Mebane, dated 1st January, 1874?” The jury answer “Yes.”

There was evidence introduced by both the plaintiff and the contesting defendants tending to support the affirmative and negative of these issues.

Upon the verdict of the jury upon the issues the court gave judgment for the contesting defendant, whereupon the plaintiff having excepted to sundry rulings of the court and the judgment thus given by it, appealed to this court.

Mr. George Davis, for plaintiff .

Mr. C. M. Stedman, for defendant .

MERRIMON, J., after stating the case.

The decision of a single one of the numerous questions discussed before us, must in our judgment be conclusive of this case, and we need not decide the others.

Passing by all questions as to the validity of the mortgage debt, and the mortgage executed by Maria A. Mebane to the defendant corporation, and any like question as to the validity of the notes which the plaintiff seeks to have paid by a sale of the real property embraced by that mortgage, we think the defendant Charles P. Mebane paid, and was fully authorized to pay and discharge, the mortgage debt mentioned, due to the defendant corporation, by executing to it his own three promissory notes, two of which the plaintiff now owns; and that the mortgage debt being discharged, the mortgage itself was in equity discharged, and has no operative effect for any purpose.

It appears to us very clearly, that in January, 1874, Charles P. Mebane agreed with Maria A. Mebane, for a valuable consideration, that he would pay and discharge her indebtedness, secured by the mortgage to the defendant corporation. He “assumed,” obliged himself to her, to pay this indebtedness and executed to her a bond of indemnity to that effect. This engagement was between the two last mentioned parties. The corporation was in no way a party to it; it continued to hold its debt and the mortgage to secure it, just as if the agreement had not been made.

Charles P. Mebane was thus fully authorized to pay and discharge the mortgage debt due to the corporation in such way, and for such valuable consideration as might be acceptable to the latter. He was not bound to pay it in a particular way, or pay the whole of it, if he could discharge it by paying a less sum. His obligation was to discharge it, and he had no further or other power or authority from Maria A. Mebane to do anything more about it.

At first, he paid portions--installments--of the debt he thus assumed to pay, as required by its terms, and as provided in the mortgage. At length, however, he failed to do so, and finally the corporation agreed with him to accept his three promissory notes in discharge of the whole indebtedness of Maria A. Mebane secured by the mortgage the plaintiff alleges still to exist and seeks to foreclose. It appears that the notes were given and accepted as an adjustment and settlement of the whole, not simply a part, of the debt. All the evidence goes to prove this, and the jury expressly found that the notes were given and accepted in “payment and satisfaction” of the mortgage debt mentioned. There is nothing going to show that there was any reservation of right or advantage to the corporation, or Charles P....