Williams v. Walker

• Decision Date: 20 December 1892
• Citation: 16 S.E. 706,111 N.C. 604
• Parties: WILLIAMS et al. v. WALKER et al.
• Court: North Carolina Supreme Court

16 S.E. 706

111 N.C. 604

WILLIAMS et al. v. WALKER et al.

Supreme Court of North Carolina

December 20, 1892

Cross appeals from superior court, Cumberland county; E. T. BOYKIN Judge.

Action by W. A. Williams, trustee, and others, against A. B. Walker and A. B. Walker, administrator of Elizabeth Walker, to foreclose a mortgage. From a judgment for plaintiffs there were cross appeals. Affirmed as to plaintiffs. Reversed as to defendants.

The complaint alleged: (1) That previous to December 27, 1878 and until January 1, 1881, J. D. Williams, of Fayetteville K. M. Murchison and W. F. Sowrey, of New York city, and G. W Williams and D. R. Murchison, of Wilmington, were associated in business in Fayetteville, N. C., as partners under the firm name of J. D. Williams & Co., and that on January 1, 1881, J. D. Williams succeeded to the sole ownership of the assets, and assumed the liabilities, of said firm of J. D. Williams & Co., the other partners withdrawing. (2) That on December 27, 1878, the defendants, A. B. Walker and his wife, Elizabeth Walker, a free trader, executed to said J. D. Williams & Co. a note for $3,000, negotiable and payable at the Fayetteville National Bank 90 days after date, with interest on the same from maturity at the rate of 8 per cent. per annum; that said indebtedness was incurred by said Elizabeth Walker as a free trader, and to secure the payment of said note, "or any note or notes given in renewal or substitution therefor, or any sums that might be demanded by way of interest or partial payment thereon at any renewal," the defendants executed to W. N. Williams, trustee for said J. D. Williams & Co., a mortgage, duly recorded in register's office of Cumberland county on land and personal property. (3) That at various times, and in various amounts, the defendants made payments on the principal and interest due on said note, and notes given in renewal of said note, until December 4, 1887, on which day a note for $2,000, in substitution for said note, payable to J. D. Williams & Co. 30 days after date, with interest from maturity at 8 per cent. per annum, was given and negotiated at the Fayetteville National Bank; and, though the defendants were notified that said note was past due, they made no payment on the principal or interest due thereon, and paid no regard to said note, but allowed the same to run on in the bank due and unpaid until July 5, 1888, when J. D. Williams, sole partner in the firm of J. D. Williams & Co., paid to William Huske, cashier of said Fayetteville National Bank, the sum of $2,077.78, in full settlement of the principal and interest due on said note. (4) That on March 10, 1879, J. D. Williams & Co. became indorsers on a note for $1,200, due by A. B. Walker and Mrs. A. B. Walker, a free trader, at the Fayetteville National Bank, and payable 90 days after date, with interest from maturity at 8 per cent. per annum; and to secure said J. D. Williams & Co. in their indorsement on said note, or any note or notes thereafter to be given in renewal or substitution for said note of $1,200, and all expenses, the defendants, A. B. Walker and Elizabeth Walker, his wife, as a sole trader, executed to W. N. Williams, trustee for said J. D. Williams & Co., a mortgage duly recorded in office of register of deeds in Cumberland county on land. (5) That said note for $1,200 was from time to time renewed, and the interest on the same paid, until January 6, 1888, when a renewal note for $1,200, dated December 4, 1887, became due, and, notwithstanding notice, remained due and unpaid until July 5, 1888, when J. D. Williams, as sole owner of effects of J. D. Williams & Co., paid William Huske, cashier of the Fayetteville National Bank, in settlement of said note and interest from January 6, 1888, the sum of $1,246.66. (6) That defendants have never paid W. N. Williams, trustee, nor to J. D. Williams, any part of said sums of $2,077.78 and $1,246.66, but the sum of $3,324.44 remains due and payable to J. D. Williams, and the defendants refuse to pay the same.

The defendants, answering the complaint of plaintiffs, say: (1) That as to the allegations contained in article 1 of same they have no knowledge or information sufficient to form a belief. (2) That the allegations in article 2 of same are true, except the allegation that Elizabeth Walker was a free trader at the time of the execution of the notes and conveyances therein described, which allegation is expressly denied; and it is further denied that the indebtedness spoken of and referred to in said article was incurred by said Elizabeth Walker as a free trader; and defendants deny that said mortgages or trust deeds were duly executed or registered. (3) That they admit the allegations contained in article 3 of same, except that allegation which states that on the 5th day of July, 1881, J. D. Williams, sole partner in the firm of J. D. Williams & Co., paid to William Huske, cashier of the Fayetteville National Bank, the sum of $2,077.78 in full settlement of the principal and interest due on said note, of which they have no knowledge or information sufficient to form a belief. (4) That the allegations in article 4 of same are true, except the allegation that Elizabeth Walker did any act whatever in regard to the premises as a "free trader" or a "sole trader," which is expressly denied, and defendants say that said mortgage has never been duly executed or registered. (5) That the allegations in article 5 of same are true, except the allegation that on the 5th day of July, 1888, J. D. Williams, as sole owner of effects of J. D. Williams & Co., paid William Huske, cashier of the Fayetteville National Bank, in settlement of note and interest from January 6, 1888, the sum of $1,246.66, of which they have no knowledge or information sufficient to form a belief. For a further answer the defendants say: (1) That Elizabeth Walker is, and has been from March 23, 1874, a married woman, and unable to contract without the written assent of her husband, or to convey real estate, without an examination taken privately, separately, and apart from her said husband or any other person, as defendants are advised and believe, and that she is not liable in law for said debts; that said trusts or mortgages are invalid, and of none effect. (2) That her private examination has never been taken upon, or in relation to, any of the conveyances set forth or referred to in plaintiff's complaint, and that the real estate referred to in said conveyances is her own separate estate held for her. (3) That defendants have paid on, and upon account of, the indebtedness set forth in plaintiff's complaint, the sum of $4,262 of principal and interest.

H. McD. Robinson and T. H. Sutton, for plaintiffs.

N. W. Ray and Batchelor & Devereux, for defendants.

BURWELL J.

This cause was before this court at September term, 1890, upon an appeal by Mrs. Elizabeth Walker, which appeal was dismissed because the order appealed from was interlocutory. 107 N.C. 334, 12 S.E. Rep. 43. Since that dismissal of her appeal, Mrs. Elizabeth Walker has died, and the administrator of her estate and her heir at law have been made parties defendant in her stead. The reference which was directed by the interlocutory order from which Mrs. Walker appealed, as above stated, was had, exceptions, to the referee's report were filed and considered, and a final judgment was rendered at January term, 1892, of the superior court of Cumberland county, from which judgment both the plaintiffs and defendants appealed to this court. The records filed in these appeals are voluminous, and many exceptions were taken by the parties during the long progress of the cause; but the decision of two questions, which are presented in each of the "cases," seems sufficient to dispose of the matter now before us.

1. The plaintiffs contend that Elizabeth Walker, who was the wife of A. B. Walker, was a "free trader" at the time she executed the mortgages, the foreclosure of which is the relief demanded in the complaint. They admit that no such certificate as is provided for in section 1827 of the Code was ever registered in the office of the register of deeds for Cumberland county, where she resided; but they insist that she was a "free trader" at that time, because the mortgages set out in the complaint recited that she was a free trader, and these mortgages were signed by her and her husband, and were duly proved by the subscribing witness and registered; and on the trial they introduced other mortgages executed, probated, and registered in like manner, and containing the same recital, to wit, that she was a "free trader." They further contend, as we understand the record, that inasmuch as they had produced two witnesses (McIlvary and Campbell) who testified, the defendant objecting, that they were very firmly impressed with the belief that Mrs. Walker was a free trader, and they thought they had seen her "free-trade papers" in the register's office, (at what date they could not tell,) but had searched the register's books and could find no such paper registered, the jury should have been allowed to pass upon the issue whether or not she was a free trader. The Code (section 1827) provides that "a married woman, in order to become a free trader, shall sign with her husband a writing in the following or some equivalent form: 'A. B., of the age of twenty-one years or upwards, wife of C. D., of ___ county, with his consent, testified by his signature hereto, enters herself as a free trader from the date of the registration hereof. Signed, A. B. C. D. Witness: E. F. Registered this ___ day of ___, 18--.' The said writing may be proved by the subscribing witness, or acknowledged by the parties, before any officer authorized to take the...