*1 FALL TEEM, N. 589 O.]
Bradham Robinson. sion, general must be held provision to cover such only cases general within its language not within the are terms the particular Steelman, In provision. re 219 13 2d 306, N.C. S.E. School 544; Com Aldermen, R., v. 905; missioners 158 N.C. 73 191, Nance v. R. 149 S.E. Co., 63 116; N.C. v. Chicago S.E. Consol. Traction 274 Handtoffski Ill. 113 N.E. 50 620; Jur., Am. section Statutes, 367; 59 C.J., section 596. Statutes,
When conflicting provisions embodied subsections (1) and (3) of section 5 of the Bus Act of 1949 are read light this canon of construction, it particular manifest that the provision is (3) subsection regarded must he as an general provision subsection (1). true, This being the North Carolina Utilities Commission does have regulatory supervision operations devoted exclusively to motor transportation vehicle of the bona industrial employees fide and from the plants to of their places employment cases even where persons conducting operations at time or engaged the same times carrying callings other common carriers motor vehicle.
This decision necessitates the affirmance
Affirmed. I., took
Parker, part consideration decision this case.' TENNANT, BRADHAM, REDDICK, BRADHAM, A. A. R. B. E. W. McCOLLUM, CHURCH, of MT. OLIVET A.M.E. ZION JULIUS Trustees v. A. D. ROBINSON. (Filed December, 1952.) Trial §55— agreement judge, parties, of an issue under in the trial of fact findings required sepa- fact and his state conclusions law adjudicate rights parties accordingly, rately writing. all in Same— findings agreement of fact the trial court under will be construed may reasonably uphold if this done. persons pur- Where the issue of fact submitted is whether porting property to execute a on church as trustees were in fact so, authorized to do the court’s the effect that the instrument far was executed individuals as the concerned void, the instrument will be construed as that such IN THE SUPREME COURT. Bradham *2 instrument, support decree that and thus the not authorized to execute the the instrument be canceled. 4. Same— reporter and causes to the court Where the dictates finding them, reporter the a of it amounts to to transcribe judge writing. in incorporate sign them of fact and The failure of the judg- cause does not render the into formal rendered in the compliance void, 1-185. a with G-.S. ment there substantial Mortgages 6. 27—§ mortgagor asserted establishes that the Where the verdict of validity, any amount, mortgage mortgagee has
not indebted to the proper. and decree of cancellation J., concurring in result. Barnhill, Patton, a
Appeal Special Judge, jury, April defendant from of Term, Guiufobd. resulting tbe cloud to cancel a mortgage
Civil action as remove mortgaged. from a title to tbe land from it church’s set facts are summarized tbe numbered controlling paragraphs out below. W. Tennant, E. M. A. R. Bradham, Reddick,
1. Tbe B. A. of present and Julius trustees tbe Mt. Olivet McCollum tbe Bradham, Church, Zion which is hereinafter called religious congregation, A.M.E. adheres to well Church, religious Mt. Olivet and which established as Zion Church. Episcopal known African Methodist denomination Mt. a church parsonage 2. Olivet Church owns Carolina. Greensboro, Beech Street North Book of the African Method- Discipline Doctrines Under church adhering Zion the trustees each take Episcopal Church, ist for The trustees cannot alienate encumber hold such church. property majority consent of of all the members without the property assembled and consent of annual congregation meeting adhering district in which the conference church bishop is located. D. pastor
4. The Robinson served as Olivet defendant A. . . “the fall of 1942 . . . until . the fall 1945.” Church from Eugenia 5. On November, Davis, Smith, Caroline and Yiola who to act as trustees Mt. Olivet executed Wade, purported Church, to the defendant a sufficient form paper writing building and Mt. Olivet Church to parsonage security According for the the recitations of the $3,600. N. FALL TEEM, 0.]
Bradham sum is paper writing, due the defendant Mt. Olivet this Church. was forthwith paper writing, registered which the office of-the Eegister County, designated Deeds Guilford is hereinafter as -the mortgage. Subsequent events, plaintiffs brought these this action against
the defendant to obtain a decree canceling mortgage cloud title Mt. Church to its church building parsonage. They for allege grounds cancellation of that Mt. Olivet Church indebted to defendant in sum whatever, and that executed the had no to make it. authority Their complaint avers in that Caroline Davis, Eugenia detail Smith, and Yiola never Wade were trustees of Mt. Olivet Church, and never had any authority from its congregation, from annual conference *3 or the bishop of the district in which is located, it to its encumber property.
7. The defendant answered, the truth of denying the matters invoked by as complaint grounds for the cancellation of the mortgage. The answer by in detail pleads way of counterclaim that Mt. Olivet Church owesthe defendant for $4,600 moneys loaned and services to rendered it himby his during pastorate, and that of a part debt, to wit, $3,600, by is secured which was executed to him mortgage, by the duly authorized trustees of Mt. Olivet Church. answer prays The the court to award an the defendant judgment against affirmative plaintiffs for total and debt, amount to order the be foreclosed for the satisfaction of part debt secured it. The filed a plaintiffs truth of the reply, denying the counterclaim and pleading three-year statute of limitations as a bar recovery on it. Judge George When the action came to be heard before B. Patton,
who presided April Term, Superior Court of Guilford waived “a trial ... on all matters County, parties jury ... controversy with the of the sole issue of indebtedness” and sub- mitted “the remainder of the involved . . questions (to) . . . . court . . . without the intervention of jury.” opposing The sides undertook their support respective allegations
by offering jurors. evidencebefore the and the trial presiding The returned a verdict to effect that Mt. Olivet Church is not in- jury debted to the and any amount, Judge defendant Patton made these “The court is from and so findings: opinion this evidence finds that . . . deed is not on the purported mortgage binding church; that in far church is it is void concerned, instrument, it an defendant, instrument executed three individuals to this nothing nothing less; concerned, more that so far the church is it is void.” IN THE SUPREME COURT. V. ROBINSON.
BRADHAM findings to the court who reduced Judge reporter, Patton dictated these Patton writing. Judge sign they did not after them judgment the formal men- incorporate reduced to them writing, next paragraph. tioned Judge findings, its
10. After returned verdict he made the mortgage wherein he concluded Patton entered formal that the law,” adjudged ... as matter of be “void and unenforceable anything entitled to recover defendant of Mt. a cloud the title and canceled the counterclaim, The to its church parsonage. Olivet Church appealed, assigning excepted errors. Stanley appellees. plaintiffs, E. for n &Henderson and Percy defendant, appellant. Wall L.
Henderson for assignments makes these assertions J. The defendant EbviN, of error: 1-185, of Gr.S. provisions specify- did not observe the the judge 1. That decision shall court, of an issue its ing “upon facts found, contain a statement and shall writing, given law separately.” the conclusions signing committed error
2. That the issues of fact: Whether instant case in the raise these pleadings whether the defendant; indebted to the Church is Mt. Olivet authorized to do so by to the defendant were executed *4 of in the district bishop conference the Church and the annual Olivet and whether counterclaim located; the Church which Mt. Olivet of legal importance of limitations. The three-year statute by the barred on Mt. Olivet Church indebted is contingent last of issues the the to defendant. the the of an mode for trial of the issues unusual agreed parties
The question that whether They stipulated in below. the the court fact should be jury, the left to the Church is indebted to defendant Olivet Mt. by judge. be decided the issues fact should that the other .and to by parties of an of fact is waived the by jury trial issue Where the of fact is required who tries the issue Gr.S. action, judge by a civil the To find the facts on things writing: (1) the do three 1-185 to these to declare the conclusions of law him; (2) to of fact submitted issue adjudicate the by him; (3) found to rights on the facts arising judge In this the must state his accordingly. performing task, parties the his of law Woodard Mor separately. conclusions v. of fact findings 2d 67 S.E. 234 N.C. decai. TERM, 593 FALL N. O.] Bbadham with, that the argues appeal much earnestness whether make of fact” in to findings respect failed “to judge authorized the to the defendant were persons
the who executed bishop do Church and annual the to so Mt. Olivet conference way and in that located, of the which Mt. Olivet Church district an issue judge that who tries ignored statutory the plain requirement on find issue. must fell trial judge Candor the reluctant observation that able compels char- ordinarily standards which exceedingly high somewhat short labors made on of fact findings when his issue judicial acterize he have couched his ought findings specific under consideration. He to its and he meaning, ought construction to reveal requiring not language document his conclusions findings containing embodied his have of law adjudication. and his reject we are constrained of the defendant position
Nevertheless, rule of the trial appeal findings of the under that phase this if uphold, rather than to judge defeat, judgment, will be construed Trial, be done. 64 section 1149. When the reasonably this may O.J., issues, judge light pleadings, findings interpreted that evidence, may justly be held to mean the three they to do to the defendant were authorized executed the Mt. and the annual conference Church congregation Olivet Church District which is located. bishop found facts on of fact It the issue appears judge thus thing agency under Since who does through consideration. he found the facts in when he himself, judge writing another does it to the the court reporter reporter dictated his court caused of law and them. He made conclusions entered proper transcribe him adjudged the facts found when he proper adjudication as a be “void and unenforceable” ordered it canceled to its and its cloud title Mt. Olivet Church on the Instruments, 12 Cancellation of section 34. He cer- C.J.S., parsonage. and his he of fact conclusions law when tainly separated These things being true, in different documents. put them all of G-.S.1-185. requirements in a substantial manner with complied of error based on to the assignment signing whether the facts found solitary raises the question Deaton, Deaton N.C. jury support and the Co., Rader 225 N.C. 2d 626; 2d v. Coach S.E. *5 538, 67 S.E. said it that the plain What has been makes fact already order for cancellation mortgage. judge justify adjudication sustains the that the defendant is not jury verdict counterclaim. anything Indeed, entitled to recover plainti^s IN THE SUPREME COURT. Trust Co. v. Johnson. also tbe supports tbe verdict order of A cancellation. mortgage wbicb to secure tbe of a debt no purports bas if validity tbe debt bas no 59 C.J.S., existence. section Mortgages,
For tbe reasons there is in law given,
No error. J., concurring result: It is admitted that tbe plaintiffs BaRnhill, are at trustees of Mt. present Zion Oburcb. tbey A.M.E. As sucb are vested with title to tbe cburcb found property. tbe jury Tbe tbey, are not indebted to tbe trustees, any amount. wbat So boots it those who tbe signed alleged whether then or interlopers, trustees mere or whether mortgage, tbe when ab initio or a executed, was void valid lien upon church property, tbe with judge complied whether tbe statute in tbe finding tbe tbe ? to him issue submitted jury
So soon as tbe rendered its wbat tbe verdict, judge might might him respect not do issue submitted to became wholly tbe immaterial. bas found that are not indebted defendant in jury plaintiffs is still of paper writing record, amount. Tbe uncanceled. It constitutes cloud on tbe title As there is no valid plaintiffs. directed of debt, to tbe tbe issue tbe are entitled to a judg- A its cancellation. to this effect was I decreeing ment decree entered. is made to appear. therefore concur in tbe conclusion that error COMPANY, Executor and Trustee AMERICAN TRUST Under Last JOHNSON, Deceased, B. CURTIS MRS. Will and Testament JOHNSON, LEE; Widow; MRS. IDA J. IRVING HARDING LEE, GEORGE LEE, JR.; LEE; M. HARRY J. MRS. BETTY SAM WEIR LEE LEE; ; REX; LEE; A. LEE D. WEIR SUSAN PATRICIA ROBERT REX; LEE, LEE, MELINDA GEORGE SAM and Unborn Children May JR., LEE, and HARRY Be J. Hereafter Born Prior to the Death of MRS. IRVING HARDING JOHNSON. December, (Filed 1952.) 331c, 1. Wills 40— §§ express implied provision In tbe absence of an in tbe will to tbe con- remainder, trary, tbougb fee, it be a vested even defeasible will be accel- may erated tbe failure of tbe life estate if tbe remaindermen identified, vest, simple tbe fee absolute tbe dissent of tbe widow rejection meaning is a of ber life estate witbin tbe of this rule. gives Where tbe will tbe widow life estate witb vested remainder of iiwneficiaries, provides annuity defeasible fee to named and also for an