75 S.E. 854 | N.C. | 1912
This is an action to foreclose a mortgage. The defendant, Adam Hemby, who is an ignorant colored man, applied to the plaintiffs, who owned a store in the neighborhood, to lend him $1,900 to assist in purchasing a tract of land. The plaintiffs agreed to do so, but required, as defendants allege, a bonus of $1,100 and a mortgage for the $3,000 payable in ten annual installments, with interest. Subsequently, the vendor, on the suggestion of the plaintiffs and with the assent of the defendant, conveyed the land directly to the plaintiffs, with an understanding, as the defendants contend, that the plaintiffs were to convey same to Hemby and receive back the mortgage for $3,000 as aforesaid, and the defendants went into possession of the land. But subsequently the plaintiffs declined to make the arrangements unless the mortgage was executed for $3,800. This was given, and when the first note fell due the plaintiffs brought this action to foreclose the mortgage. The defendants immediately applied for a restraining order and asked an accounting, and alleged that all of the debt in excess of $1,900 (22) was void because usurious. The injunction was continued to the hearing.
The plaintiffs contended that the transaction was a straight sale of the land to the plaintiffs for $1,900 and a resale by them to the defendants for $3,800 secured by mortgage. The jury found upon the conflicting evidence, on the issues submitted to them, as follows:
1. Was the real transaction stated in the pleadings a purchase of land by Adam Hemby and wife from Mark Wilkes, and a loan of money by plaintiffs to defendant Adam Hemby, to pay for such land? Answer: Yes.
2. If so, how much money did plaintiffs loan to Adam Hemby? Answer: $1,900, with 6 per cent interest from 8 January, 1910.
Thereupon the court rendered judgment for that sum, and appointed commissioners to advertise and sell if said amount and interest was not paid in sixty days. It was further decreed that the payment of such sum, with interest, should be in full payment and satisfaction of the debt, and all in excess thereof was declared null and void and canceled.
This decree is in accordance with the verdict. Riley v. Sears,
Exceptions 1 and 13 are to the opening and conclusion, which were properly held to be upon the defendant. The defendant having admitted the execution of the notes and mortgage, the burden was upon him to show the matters alleged in avoidance. Besides, as to the argument, the ruling was not appealable. Rules of Superior Court No. 6, 140 N.C. Exceptions 3, 5, 6, and 8 were to the admission of evidence which was offered to show that the vendor, Mark Wilkes, contracted to sell his land, not to plaintiffs, but to Hemby, and under what circumstances he conveyed to plaintiffs, and the understanding of the parties at the time. This evidence was both pertinent and relevant.
The exception to the form of the issues cannot be sustained. They properly presented the issue which arose upon the pleadings (23) as to the "true inwardness of the transaction," and, if found with the defendants, then the amount of money loaned. Williamson v.Bryan,
The court properly refused to nonsuit the defendant as to the matters set up in his counterclaim, and also properly refused a motion non obstanteveredicto. Doster v. English,
The other exceptions are abandoned.
No error.