87 S.E. 341 | N.C. | 1915
Lead Opinion
Civil action to recover the possession of the land described in the complaint.
Defendant denied plaintiff's title and right to the possession, and specially pleaded certain equities to defeat their recovery.
The facts out of which the controversy arose are, briefly stated, these: The land was purchased by Alfred Andrews from W. A. James, and afterwards he mortgaged the same, first, to F. J. H. P. Bryant; second, to D. S. Powell, and, third, to R. J. Grimes. When the debts and mortgages matured F. J. H. P. Bryant brought three suits to foreclose his mortgage, one against Alfred Andrews, another against D. S. Powell, and the third against Alfred Andrews and D. S. Powell, and also prayed for an injunction against the cutting of timber from the land by D. S. Powell under an agreement with Alfred Andrews. The three suits *592 were consolidated and referred to E. A. Moye, who reported to the court that there was a balance of $198 due by said Andrews to Bryant, the mortgagee, and thereupon the court ordered a foreclosure, and appointed F. G. James commissioner to make the sale. Before these orders were made R. J. Grimes interpleaded and, upon his own request, was made a party to the suits by order of the court. F. G. James reported to September Term, 1900, of the court that he had, on 5 June, 1900, sold the land, as he was ordered to do, and that D. S. Powell had become the last and highest bidder, and the purchaser thereof, at the price of $225. His report was confirmed and, under the order of court, he (517) conveyed the land to the purchaser, D. S. Powell, by deed dated 18 July, 1901.
The defendant Polly Andrews is the widow of Alfred Andrews, and the feme defendant Florence Martin, wife of her codefendant, Burton Martin, is his child and only heir. The remaining defendant, D. S. Powell, was one of the mortgagees and the purchaser of the land at the sale made by the commissioner.
D. S. Powell afterwards conveyed the land, by deed dated 16 August, 1901, to the plaintiff, Effie Grimes, and by it the title to the land was vested in her, at least prima facie.
The defendants, in order to rebut this prima facie title, alleged, and offered evidence tending to prove, that D. S. Powell had verbally agreed with Alfred Andrews to purchase the land for him at the sale thereof, and convey the same to him on payment of the bid, and also that defendants, other than D. S. Powell and Alfred Andrews, had been in the adverse possession of the land for more than twenty years, and they specially pleaded the same in bar of plaintiff's recovery, and also specially pleaded the ten years statute and seven years of adverse possession under color of title.
Plaintiff replied by denying the adverse possession and averring that there was no parol trust in favor of the defendants pleading the same, and that, if there was, she had purchased for value and without notice of the same.
Upon these contentions made by the pleadings the case came on for trial, whereupon the court submitted issues to the jury corresponding with said contentions, and, in response to them, the jury returned the following verdict:
1. At the time of the sale of the lands in controversy by F. G. James, commissioner, did the relation of mortgagor and mortgagee exist between Alfred Andrews and D. S. Powell with respect to the said land? A. "Yes."
2. At the time of the sale of the lands in controversy by F. G. James, commissioner, did the relation of mortgagor and mortgagee exist between *593 Alfred Andrews and R. J. Grimes with respect to the said land? A. "Yes."
3. Was the land in controversy conveyed by D. S. Powell to plaintiff, Effie Grimes, at the request and for the benefit of her father, R. J. Grimes? A. "No."
4. What sum, if any, did Effie Grimes pay for said land? A. "Nothing."
5. At the time Effie Grimes took the deed for the said land did the relation of mortgagor and mortgagee exist between Alfred Andrews and R. J. Grimes with respect to said land? A. "Yes."
6. Did Effie Grimes or R. J. Grimes have notice, when the deed (518) was made to her by D. S. Powell, of the relation of mortgagor and mortgagee between Alfred Andrews and D. S. Powell with respect to said land at the time Powell bought at the sale made by F. G. James, commissioner? A. "Yes."
7. Did D. S. Powell bid off the land at the sale made by F. G. James, commissioner, pursuant to a parol agreement between himself and Alfred Andrews that he would buy the land for Andrews? A. "Yes."
8. If so, did Effie Grimes have notice of such agreement when D. S. Powell conveyed the land to her? A. "No."
9. Has the defendant Florence Martin, and those under whom she claims, been in possession of the tract of land in controversy, holding the same adversely against all parties, for more than twenty years next prior to the commencement of this action, as alleged? A. "Yes."
10. Has the defendant Florence Martin, and those under whom she claims, been in possession of the tract of land in controversy, holding the same adversely against all parties, for more that ten years prior to the commencement of this action, as alleged? A. "Yes."
11. Has the defendant Florence Martin, and those under whom she claims, been in possession of the tract of land described in the pleadings, holdings adversely to all parties under color of title, for more than seven years next prior to the commencement of this action, as alleged? A. "Yes."
12. When was the action entitled "Alfred Andrews, Polly Andrews, and Florence Martin v. D. S. Powell and Effie Grimes" dismissed? A. "November Term, 1910."
13. Did more than twelve months elapse after the dismissal of the action of Alfred Andrews, Polly Andrews, and Florence Martin v. D. S. Powell and Effie Grimes prior to the commencement of this action, as alleged? A. "Yes."
14. Is the plaintiff the owner of and entitled to the possession of the land described in the complaint? A. "No." *594
15. Are the defendants Burton Martin and wife, Florence Martin, in the wrongful and unlawful possession of the same? A. "No."
16. What is the annual rental value of said land? A. "$20."
At the close of the evidence the plaintiff and D. S. Powell asked for judgment, on the pleadings, admissions, and all the evidence, for the land in controversy and the amount of the annual rent of $20 from January, 1909, and for an instruction to the jury that the fourteenth and fifteenth issues be answered "Yes"; which requests were refused by the court, and plaintiffs excepted.
The Court instructed the jury to answer the second issue "Yes" and the fourth issue "Nothing," and plaintiff and D. S. Powell again excepted.
(519) Plaintiff Effie Grimes moved that the court set aside the findings under the ninth, tenth, eleventh, and fourteenth, and fifteenth issues, which motion was at first refused, and afterwards granted as to the ninth, eleventh, fourteenth, and fifteenth issues, leaving the others intact. Defendants, other than D. S. Powell, excepted. The plaintiff and D. S. Powell had duly objected to the submission of the first thirteen issues, and they excepted to the overruling of their motion. They also excepted to the following instruction of the court upon the ninth issue, as to whether there was a parol agreement between D. S. Powell and Alfred Andrews that the former should buy the land, at the sale, for the latter: "The burden of this issue is upon the defendant Florence Martin, that is, she must produce evidence that will satisfy you by its greater weight of the truth of that. By the greater weight of the evidence, the overbearing evidence, that, prior to the sale, Powell had a conversation with Andrews; that he agreed to come to Greenville and buy this land off for him and to pay for it out of them money that he owed Andrews for the timber that he had cut off of the land." They also excepted to the refusal of their motion for judgment upon the remaining issues, after the others had been set aside, and for $20 as the annual rental value of the land.
The plaintiff's thirtieth assignment of error is as follows: "The court refused to set aside the whole verdict and refused to sign judgment for the plaintiff, but ordered the issues of the verdict which had not been set aside recorded, to which order the plaintiffs Effie Grimes and D. S. Powell excepted." There were other exceptions taken by plaintiff and D. S. Powell to evidence and other matters, but, in the view the court takes of the case, it is not necessary to state them here.
Defendants, other than D. S. Powell, moved to nonsuit the plaintiff. The motion was denied, and they excepted. There are other exceptions of the defendants, but they need not be mentioned here, except the one *595 taken to the refusal of the court to render judgment in their favor upon the remaining issues.
Plaintiff and D. S. Powell and the defendant Florence Martin appealed.
PLAINTIFF'S APPEAL
After stating the case: The ruling of the court which denied plaintiff's motion for judgment was correct. The dismissal of the former suit, if for the same cause of action, did not constitute and estoppel, as the case was not heard and decided on its merits, but the dismissal was equivalent to a nonsuit, granted because plaintiff in that suit had not prosecuted the same. It was early decided, in (520)Bond v. McNider,
The case of Bond v. McNider has been frequently approved by this Court:Plummer v. Wheeler,
In Koonce v. Pelletier, supra, Smith, C. J., said that "The dismissal, on account of its vague and unsatisfactory statements and not being based upon an examination into the merits, is rather of the nature and effect of a nonsuit, as was held in Bond v. McNider,
We do not say that where it appears that the merits have been considered and passed upon, the judgment of dismissal may not be successfully pleaded as a former adjudication, but no such thing occurred here. The other suit was dismissed, with costs against the plaintiff, simply because he had failed to restore the lost record, and in no sense were the merits touched upon. It could have no more legal effect than a nonsuit, where the plaintiff fails to prosecute his cause, or is called and fails to appear. His laches put him out of court, and that is all it does, and he may come back again at his will and pleasure and pursue the same cause without being affected by any bar of the former (522) judgment.
Nor do we think that the plaintiff can gain anything by reason of the fact that the suit was not revived within one year after the dismissal. That is required to be done only under Revisal, sec. 370, where the statute of limitations would otherwise bar by the lapse of the period prescribed for bringing the suit.
It was held in Keener v. Goodson,
But, while the plaintiff was not entitled to judgment upon the record, we are of the opinion that the judge committed an error in the instruction *598
as to the quantum of proof, in the seventh issue. It was intended by the issue to engraft a parol trust upon the legal title acquired by D. S. Powell, at the sale, which afterwards passed, by his deed, to Effie Grimes, the plaintiff. The deed, on its face, purports to convey to her a fee simple absolute in the land, and defendants seek to change this into an estate in trust, the terms of the latter being that Alfred Andrews should be entitled by virtue of a prior agreement with D. S. Powell to have him, Powell, reconvey the land to him upon reimbursing Powell his expenditures. This essentially changes the deed, and, as the law strongly presumes that it was correctly written, it requires more that a bare preponderance of the evidence, or the overbearing of the evidence, to meet this strong presumption and overcome it. This case is not unlike the many we have decided which involve the same question, as to the quantum of proof, where the deed is substantially varied from the "written words." which we have so often said must abide and control the rights of the parties unless the requisite evidence is forthcoming. We have, at this term, fully discussed the matter in several cases, (523) reaffirming what was decided in Ely v. Early,
New trial.
DEFENDANTS' APPEAL.
Addendum
The court was right in refusing to enter judgment of nonsuit against the plaintiff. The defendants were not entitled to judgment upon the verdict, so far as it related to the parol trust, as the instruction of the court upon the seventh issue was erroneous, as we have held in the plaintiff's appeal; and a new trial was the necessary result. The motion for a nonsuit was made by defendants, we presume, in order to preserve their rights, if we had decided that there was no error as to *599
that issue. Nor were defendants entitled to judgment upon the verdict, so far as it related to the ninth and eleventh issues, and the fourteenth and fifteenth issues, as the court set them aside, and very properly. The possession of Alfred Andrews was not adverse prior to the sale by the commissioner, F. G. James, in 1901, as a man cannot hold possession adversely to himself. Alfred Andrews owned the land on 21 February, 1900, when he mortgaged it to D. S. Powell, and his possession from that time to the day of the sale by the commissioner was subordinate to the title of his mortgagee. Parker v. Banks,
There being no adverse possession by the defendants under color, and none without color sufficient in length of time to vest a new title in defendants, the judge was clearly right in setting aside the ninth and eleventh issues; and as there was nothing left for the fourteenth and fifteenth issues to rest upon, it follows logically that they also should have been set aside.
The last three issues were dependent upon the findings of the jury in response to those preceding them, and were submitted merely to determine the title, as between the parties, according to the verdict on the other issues.
The judge left the tenth issue undisturbed, we presume, for the purpose of ascertaining whether the defendants had been in possession, claiming the land as their own, as bearing on the question of notice to plaintiff of defendant's equity, growing out of the alleged parol trust, the general rule being that possession constitutes such notice. Justice Dillard said, in Heyer v. Beatty,
(525) As to Effie Grimes being a purchaser for value, we presume the evidence on that question will be made clearer hereafter. There was some dispute between counsel as to the effect of an entry in the record apparently bearing upon that issue, and a petition for a certiorari was filed for the purpose of having it appear more certainly what the entry meant and how it should be used in the case; but we did not consider it necessary that notice of the petition should be issued, as the matter may be differently presented if the case again comes before us.
We would suggest that the fourth issue be worded so as to submit the inquiry to the jury in this form: "Was Effie Grimes a purchaser for value?" and the eighth issued in this form: "Did she have notice of the equity alleged to have arisen out of the agreement between Alfred Andrews and D. S. Powell?" The issues as to the parol trust, as to Effie Grimes being a purchaser for value and as to her having notice of the equity, should be submitted together and consecutively, as they will now constitute defendant's main if not sole ground for a recovery. We suggest the change in the form of the issued as to plaintiff being a purchaser for value, because in its present from an answer as to what she paid for the land would not necessarily determine whether or no she bought for value, as, in the legal sense of that term, she may have paid more or less than its value for the land.
The court committed no error in refusing to sign the judgment tendered by the defendant, as, in the view we have taken of the case, they were not entitled to it. We may add, though, that if D. S. Powell and R. J. Grimes, the junior encumbrancers, were parties, with F. J. H. P. *601
Bryant, the senior mortgagee, and Alfred Andrews, the mortgagor, to the foreclosure suit, we do not see why D. S. Powell did not acquire a good title, unless Powell made the agreement with Andrews as alleged by defendants and the plaintiff did not purchase from him for value and without notice of it, because, with the consent of the court, D. S. Powell, the junior encumbrancer, could buy, being a party to the foreclosure and the court sold the legal title and all the equities. Whether D. S. Powell could have bought if he had not been a party to the foreclosure suit, but simply the holder of a junior mortgage, we need not decide. We held in Jones v. Williams,
The general result in both appeals is that a new trial must be had, and the issues rearranged so as to eliminate those which have been rendered useless or immaterial by this opinion, and some changed so as to present the true inquiries more clearly and sharply to the jury and in a more compact form.
There was error in plaintiff's but none in this appeal.
No error.
It will, therefore, be certified accordingly to the Superior Court.
In plaintiff's appeal, New trial.
In defendant's appeal, No error.
Cited: Geitner v. Jones,