Watkins v. Williams

• Decision Date: 09 November 1898
• Citation: 31 S.E. 388,123 N.C. 170
• Parties: WATKINS et al. v. WILLIAMS.
• Court: North Carolina Supreme Court

31 S.E. 388

123 N.C. 170

WATKINS et al. v. WILLIAMS.

Supreme Court of North Carolina

November 9, 1898

Appeal from superior court, Chatham county; Robinson, Judge.

Action by Henrietta Watkins and another against Brantley Williams. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

The following issues were submitted to the jury: "(1) Was the deed executed by D. S. Watkins to defendant intended as a mortgage? Answer: Yes. (2) What sum, if any, is due defendant on said mortgage? Answer: Nothing."

A deed absolute on its face was executed at the same time as a bond conditioned to reconvey on receipt of a sum advanced by the grantee to pay incumbrances, together with advances for the support of grantor's family to a certain date. Held, that the two instruments constituted a mortgage.

Murchison & Calvert, for appellant.

H. A London, for appellee.

FAIRCLOTH C.J.

The plaintiffs are the only heirs at law of D. S. Watkins, who died, intestate, in October, 1882. It appears from the record that said Watkins, in June, 1882, had executed a mortgage on the lands in controversy, about 207 acres, to Hadley & Dixon to secure a debt of $50, due them, and payable December 1 1882, and that he applied to the defendant, his brother-in-law, to take up said mortgage. Carson Johnson testified that he was a justice of the peace in 1882, and was asked by defendant to go with him to Watkins' house to prepare a deed, and further testified that, "When they got together, they discussed a mortgage of $50, made by Watkins to Hadley & Dixon. Watkins wanted Williams (the defendant) to take up this mortgage, and hold it after being assigned to him. Williams objected to having the mortgage transferred to him, and suggested a deed to him from Watkins. That was agreed upon with the understanding that Watkins should have time to redeem his land. Williams suggested two years, but four years was agreed upon as the time that Watkins was to have to redeem. Watkins expected to get a legacy from Wales. There was a deed written by me, signed by Watkins and his wife, and probated by me, and at the same time another paper writing, according to the agreement, was drawn up by me, and signed by Williams, and probated by me, and delivered to Watkins." At another part of the trial, the same witness said: "The paper which I wrote at the time I wrote the deed provided that, when Watkins paid back the money that Williams was out to Hadley & Dixon, then Williams was to reconvey to Watkins. No money was paid at that time, nor did Williams claim that Watkins owed him anything. I have been tax assessor, and we put the land at $700 or $800." The condition of the bond to reconvey the land to the plaintiff was: "On receiving the sum amounting in the aggregate, to wit, one certain mortgage made to Hadley & Dixon, taken by Alfred McPherson, tax claims bid in by J. M. Stedman, together with whatsoever amount accruing of arising for the support of the family of D. S. Watkins to the date three years hence from the date of this instrument, which will be October 23, 1885." Soon after the death of Watkins, the defendant took possession of the land and of Watkins' papers, including the aforesaid bond. The defendant was notified at the trial to produce the bond, and, on failing to do so, the parol evidence of Carson Johnson, above recited was admitted in evidence, and, after the plaintiff rested his case, the defendant introduced the bond. His honor charged the jury that the deed and paper writing (bond), constructed together, constitute a mortgage, if they believed the evidence, and that they should answer the first issue, "Yes." Defendant excepted.

We think the instruction was correct, and that conclusion ends the case. The jury say, on the second issue, that nothing is due the defendant on the mortgage, the defendant have been in possession, receiving rents and profits, since 1882. We find no copy of the deed in the record, nor any extracts from it; so we are ignorant of the recited consideration. We must infer it to be the assumption of the $50 due Hadley & Dixon; otherwise, the deed would be without consideration, and the grantee would hold the legal title in trust for the grantor.

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