Wynn v. Grant
| Citation | 81 S.E. 949,166 N.C. 39 |
| Decision Date | 20 May 1914 |
| Docket Number | 595. |
| Parties | WYNN v. GRANT ET AL. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Buncombe County; Carter, Judge.
Action by James O. Wynn against Anna M. Grant, administratrix, and others. From a judgment for plaintiff, defendants appeal. Affirmed, and motion to dismiss appeal denied.
A motion to dismiss an appeal for failure of appellant to comply with court rules 19, 34, 81 S.E. ix, xii, as to assignments of error will be denied where the exceptions relied on are to the charge on the several issues directing the jury to answer the issues in a certain way if they believe the evidence.
Action to recover the amount of a note for $1,750, secured by a deed of trust, to cancel the satisfaction of the deed of trust on the record, which was wrongfully entered by the trustee, F Rogers Grant, and to foreclose the deed of trust by sale of the land described therein, under the order of the court. The salient facts of the case are these:
In the early part of the year 1912 the defendants Mrs. Foraham and Mrs. Coachman, desiring to purchase a lot in the city of Asheville, N. C., where they intended to reside in the future, authorized Rev. M. Dickey to act for them in that behalf, and he in turn solicited the aid and assistance of Mr. Robert U. Garrett in making and completing the purchase. The place selected was the Pearson cottage, on Victoria Road in the city of Asheville, owned by Mrs. Bertha C. Welfley, at the price of $5,750, being a house and lot which had been sold by the plaintiff, James O. Wynn, who lived in Atlanta Ga., but did a realty business in Asheville, on the 22d day of April, 1911, to the said Mrs. Bertha C. Welfley, for the sum of $4,500; she paying $1,000 cash, and giving her two notes of $1,750 each, dated April 22, 1911, the first to be paid on April 22, 1912, and the second on April 22, 1913, and bearing interest at the rate of 6 per cent. per annum, payable semiannually, on the 1st days of January and July. Mrs. Bertha C. Welfley and her husband, M. L. Welfley, made a deed of trust to F. Rogers Grant, of Asheville, president of the H. F. Grant Realty Company, who was the plaintiff's realty agent in Asheville, to secure the balance due for the property.
The purchase money for the house and lot sold to Mrs. Linnie Coachman Foraham and Mrs. Jeanette Dunlap Coachman by Mrs. Bertha C. Welfley and her husband, M. L. Welfley, was paid by them out of their own funds by two checks for the sum of $2,875 each, sent to their brother-in-law, Rev. M. Dickey, and turned over to Robert U. Garrett, who in turn placed the same to the credit of his own account in the Battery Park Bank, of Asheville, N. C., and against which he, on March 22, 1912, drew a check, payable to the H. F. Grant Realty Company, for $5,709, the balance due the plaintiff, James O. Wynn, by defendant, Bertha C. Welfley and her husband, including the balance of the purchase money due Mrs. Bertha C. Welfley by Mrs. Foraham and Mrs. Coachman, after deducting some items of taxes, and adding a small amount for furniture, and on that date delivered the said check to F. Rogers Grant, trustee, a part of the same to be paid over to the plaintiff, James O. Wynn, in full of the balance of principal and interest due him by Mrs. Bertha C. Welfley and her husband as purchase money on said house and lot, and the remainder to be delivered to Mrs. Bertha C. Welfley in payment of the balance of purchase money coming to her from the said Linnie Coachman and Jeanette Dunlap Coachman, purchasers of said property, which payment was accepted for said purpose by the said F. Rogers Grant, trustee.
On the 22d day of March, 1912, at the time of the making of the payment to F. Rogers Grant, trustee, by Robert U. Garrett, F. Rogers Grant went to the office of the register of deeds of Buncombe county, where the deed of trust was recorded, and in the presence of the register of deeds made the following entry: On the same day, March 22, 1912, F. Rogers Grant, trustee, in the name of the H. F. Grant Realty Company, remitted to plaintiff, James O. Wynn, at Atlanta, Ga., by check on the American National Bank of Asheville, N. C., the sum of $1,944.74, in full payment of the outstanding purchase-money note of Bertha C. Welfley and M. L. Welfley for $1,750, due April 22, 1912, together with the accrued interest thereon, and also the interest accrued to that date on the remaining outstanding purchase-money note of Bertha C. Welfley and M. L. Welfley for $1,750, due April 22, 1913; neither of said notes being due at said time, and only a part of the interest having accrued on each, the interest which had accrued since January 1, 1913, not being due on either of said notes. But the outstanding Welfley purchase-money note of $1,750, due April 22, 1913, although paid to Grant by Garrett for payment to Wynn, was not remitted to Wynn, except the accrued interest up to March 22, 1912, nor was the receipt thereof from Garrett acknowledged by Grant in making the partial remittance to Wynn; but, instead thereof, in his letter of transmittal, he asked whether Wynn would discount said note, implying thereby that it had not yet been paid to him, but that Welfley might pay it at any time if a discount were allowed. To this Wynn replied, under date of March 28, 1912, that he did not care to discount the said note of $1,750, due April 22, 1913, until he could find a way to use the money, but would probably like to do so during the following summer, provided he could discount it on good terms. The balance of the payment by Garrett to Grant, trustee, for plaintiff, James O. Wynn, was never turned over to him, either by Grant or by the H. F. Grant Realty Company; Grant dying soon thereafter, and his wife, Mrs. Anna M. Grant, qualifying as his administratrix.
The plaintiff, James O. Wynn, did not know that the amount of the note of the Welfleys, due April 22, 1913, had been paid to F. Rogers Grant or the Grant Realty Company until after the death of Grant, and then discovered it accidentally. There was no evidence that any express authority was given by plaintiff to Grant or the realty company to collect the note. F. Rogers Grant died insolvent, and the realty company is insolvent. The defendants are Anna M. Grant, administratrix of F. Rogers Grant Mr. and Mrs. Welfley, Mrs. Coachman, and Mrs. Foraham.
The judge directed the jury that, if they believed the evidence, to answer all the issues in the negative, and accordingly they returned the following verdict:
"(1) Was F. Rogers Grant, by virtue of his office as trustee in the deed of trust, authorized to receive the money thereby secured, and to release the same of record in advance of the maturity of the notes thereby secured? Answer: No.
(2) Was the said F. Rogers Grant and the H. F. Grant Realty Company, or either of them, the agents of the plaintiff, James O. Wynn, and authorized as such to receive the money in payment of the notes secured by said deed of trust due and payable on April 22, 1913? Answer: No.
(3) Were the defendants Jeanette Dunlap Coachman and Linnie Coachman Foraham innocent purchasers for value, without any knowledge of any lack of authority or power or any alleged lack of power or authority in F. Rogers Grant, the trustee in said deed of trust, to release said deed of trust of record? Answer: No.
(4) Are the defendants M. L. Welfley and Bertha C. Welfley indebted to the plaintiff on the note due April 22, 1913, and, if so, in what amount? Answer: $1,750, with interest from March 22, 1912."
Judgment was entered upon the verdict, and defendants appealed.
Geo. A. Shuford and Britt & Toms, all of Asheville, Manning & Kitchin, of Raleigh, and Thos. W. Varnon, of Asheville, for appellants.
Merrimon, Adams & Adams, of Asheville, for appellee.
WALKER, J. (after stating the facts as above).
The defendants contend that the plaintiff is not entitled to recover upon the remaining note for $1,750, and assign, substantially, five reasons in support of their position, as follows: None of these grounds, in our opinion, is tenable.
The defendants Mrs. Coachman and Mrs. Foraham could not, in any possible view, be bona fide purchasers for value, and without notice, and we do not clearly perceive upon what real ground this suggestion can be based. If the trustee, F. Rogers Grant, had entered satisfaction of the debt and deed of trust upon the margin of the record before they bought from the Welfleys, they might be in a position to plead a bona fide purchase, in their protection, if they bought for value, and without notice of the unauthorized and wrongful satisfaction of the deed of trust by the trustee, though we do not decide that the plea could even then be available, as the question is not now before us; the fact being that they paid the money to Grant by their agent Garrett, who saw him satisfy the deed, and who knew, at the time, that at least one of the notes secured by it was not then due, and, if he had taken the slightest pains to examine the deed, he would have discovered at once that neither of the notes was due, and one of them would not mature for more than...
To continue reading
Request your trial