100 S.E. 336 | N.C. | 1919
William Mitchell died in the year 1890 and left a will, in which he devised the tract of land in question to C. R. Debnam for life, remainder to his five children, Joseph B., Mattie, Bettie, Hattie and Thomas Debnam. C. R. Debnam, the life-tenant, is still living and about thirty years ago he leased the land to the defendant, J. A. Watkins, who has held it from year to year, under the lease, ever since. On 28 October, 1909, C. R. Debnam and Hattie Debnam, one of his children, conveyed all their interest in the land, by deed of trust, to W. N. Jones, to secure an indebtedness of $80, which deed was duly recorded in October, 1909. On 16 December, 1910, C. R. Debnam and Thomas Debnam, one of his children, conveyed all their interest in the land, by mortgage, to B. F. Montague, to secure an indebtedness of $122.33, which mortgage was duly recorded on 26 January, 1911. Thomas Debnam and C. R. Debnam having failed to pay the indebtedness secured in the mortgage to B. F. Montague, the latter, under the power of sale in said mortgage, sold the land, and the defendant J.A. Watkins purchased the same at the sale on 13 April, 1912, for $225, and a deed was duly made to him by B. F. Montague and registered in April, 1912. Hattie Debnam and C. R. Debnam having failed to pay the indebtedness secured in the deed of trust to W. N. Jones, the latter sold the land, under the power of sale in the deed of trust, and conveyed the same to plaintiff, J. B. Debnam, for $260 by deed recorded on 13 July, 1913. The defendant having failed to pay rent or to give possession to the plaintiff, he commenced this action for possession and damages, as shown in his complaint.
The jury returned the following verdict:
1. Is the plaintiff the owner and entitled to the possession (239) of the land described in the complaint? Answer: "Yes."
2. What is the yearly rental value of said land? Answer: "$100."
Judgment on the verdict, and defendant appealed. after stating the facts as above: The questions of fraud and improvements may be eliminated from the case as the first *256 is not properly pleaded, nor is the second referred to at all. It was agreed that the issues be settled after hearing the evidence. There was no evidence of fraud. It may be, as suggested by plaintiff on the argument, that defendants may proceed under the statute to have an allowance made for improvements, but we give no opinion as to this matter it not being before us.
Under the tender alleged to have been made to Mr. Jones, the senior mortgagee, the money has not been deposited in court, although the defendants seek in this action to redeem from the Jones deed of trust. It was said by Justice Allen in Lee v. Manley,
There is another reason for affirming the judgment. If (240) the tender of the amount due on the note secured by the deed of trust to Mr. Jones was properly made, or was a good tender, it appears that thereafter Mr. Jones, as trustee, offered the land for sale, after advertisement; that defendants attended the sale and bid for the land, without giving any notice to the other bidders that the sale was unauthorized because of a previous tender by him of the amount due upon the note secured by the deed of trust. He made no such claim at that time, and the plaintiff purchased at the sale, for full value and without any notice of any such claim on the *257
part of the defendant. This, plaintiff contends, was a waiver of the tender defendants made, so far as he is concerned, and an estoppel upon the defendants to set it up as a defense in this action, even if, under other circumstances, it would be a valid one. This subject was considered to some extent in Dickerson v. Simmons,
In Morris v. Herndon,
We have assumed in the discussion that the tender itself, as alleged by the defendants, was sufficiently made, that is, was in due form, though there is reason to doubt it.
No error.
Cited: Lewis v. Nunn,
(243)