Wittkowski v. Watkins
| Decision Date | 31 January 1881 |
| Citation | 84 N.C. 456 |
| Court | North Carolina Supreme Court |
| Parties | SAMUEL WITTKOWSKI and another v. CALVIN WATKINS and others. |
CIVIL ACTION to recover land tried at Fall Term, 1880, of ANSON Superior Court, before Avery, J.
This was an action for the recovery of the possession of a tract of land, and to show title in themselves the plaintiffs alleged in their complaint, and proved on the trial, that on the 18th of December, 1872, Joseph W. Pond and his wife, the defendant Ellen C. Pond, conveyed the land to plaintiffs by mortgage in which there was a power of sale; and under which they sold the lands on the 27th of September, 1873, when one W. R. Jones became the purchaser, to whom a deed was made; and who reconveyed the same land to the plaintiffs by deed on the 30th of October, 1873.
The defendants in their answer, make a general denial of the title of the plaintiffs to the land in dispute, and their right to have possession of the same; and as a second defence, the defendant, Ellen C. Pond, denies that she voluntarily executed the mortgage to the plaintiffs; or that she ever acknowledged its execution before the judge of probate for registration, and she asks that both the deed and the certificate of probate may be cancelled.
The complaint was filed at spring term, 1876, and the answer at fall term, 1877; and when the case was called for trial at fall term, 1880, it did not appear that any issues had ever been prepared and submitted by the plaintiffs, but they proposed to do so then; to which the defendants objected and insisted that they could not be compelled to try until the issues had been agreed upon, or settled, as prescribed by the rule published by the supreme court. The presiding judge allowed the plaintiffs to prepare and tender the issues they wished, and required the defendants to state their objections thereto, if any, and permitted them to tender such others as they wished to submit, which they did; and the court then settled the issues to be tried, and directed the trial to be proceeded with, to which the defendants excepted.
In the course of the trial, the plaintiff, Samuel Wittkowski was introduced as a witness for the plaintiffs, and the defendant proposed to prove by him that at the sale by the mortgagees, on the 27th of September, 1873, Jones purchased the land for them and as their agent, and that the deed was made to him with the distinct understanding that he should reconvey the land to the mortgagees, the plaintiffs. This evidence was objected to by the plaintiffs upon the ground first, that no such defence as that sought to be proved was set up in the defendants' answer, and secondly, that it was immaterial, as the plaintiffs were entitled in any event to the possession under their mortgage, and His Honor concurring with the plaintiffs excluded the evidence and defendants excepted. Verdict and judgment for plaintiffs, appeal by defendants.
Messrs. Burwell & Walker and Gilliam & Gatling, for plaintiffs .
Messrs. John D. Shaw and W. A. Guthrie, for defendants .
The position taken for the plaintiffs, in regard to the point of evidence raised on the trial, cannot be questioned. They were so clearly entitled to recover the possession of the land in...
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Gregg v. Williamson
...action against the mortgagor. Federal Land Bank of Columbia v. Jones, 211 N.C. 317, 190 S.E. 479; Stevens v. Turlington, supra; Wittkowski v. Watkins, 84 N.C. 456; Hemphill v. Ross, 66 N.C. 477; Fuller v. Wadsworth, 24 N.C. 263; 37 Am. Jur. 211. But mortgagee's right to possession is only f......
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Fed. Land Bank Of D.C. v. Jones
...19 S.E. 664; Coor v. Smith, 101 N.C. 261, 7 S.E. 669; Capehart v. Dettrick, 91 N.C. 344; Bruner v. Threadgill, 88 N.C. 361; Wittkowski v. Watkins, 84 N.C. 456, 457; Cunningham v. Davis, 42 N.C. 5; Linscott v. Weeks, 72 Me. 506; 2 Jones on Mortgages, § 684 et seq. It is the holding in this j......
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... ... such an interest as would enable the plaintiff, its assignee, ... to recover in ejectment. Wittkowski v. Watkins, 84 ... N.C. 456, where Justice Ruffin said: ... "The ... position taken for the plaintiffs in regard to the point of ... ...
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