63 S.E. 952 | N.C. | 1909
This action was brought for the recovery of land and was before this Court on appeal at Spring Term, 1908 (
1. "Was there a parol agreement between C. H. Owens and Opperlina Harrell that Owens would buy in the tract of land for her and hold it in trust until the rents from the land and proceeds from (243) the sale of timber repaid him the purchase money, and then that the land should be hers?" Answer: "Yes."
2. "Has Owens received from the rents and sales of timber a sum sufficient in amount to repay him?" Answer: "Yes."
In order to establish the parol trust, two of the defendants, who are *199 interested in the result of this action, were permitted to testify, over the objection of the interpleaders, that they heard a conversation between C. H. Owens and Opperlina Harrell, in which Owens agreed to buy the land at the sale of the trustee and hold the same in trust for her. The admitted evidence tended to show that C. H. Owens had agreed with Opperlina Harrell to buy the land at the sale in trust for her, and that as soon as he had received rents and profits sufficient to reimburse himself she should have it. Mrs. Harrell stayed on the land twelve months and then moved to Macclesfield, where she occupied a home provided for her by C. H. Owens. The year before Owens died he told her that "he was through with the land and she could take it." It also appears from the pleadings, and was not controverted on the argument before us, that at the time of the sale, and prior to the adjudication of bankruptcy, Opperlina Harrell had executed a mortgage to B. F. Eagles, who afterwards sold the land under the power obtained in the mortgage to S. M. Crisp, a member of the firm of Eagles Crisp, to whom the debt was really due; that on 1 January, 1891, Opperlina Harrell executed to Eagles Crisp a second mortgage, which was unsatisfied and in force when S. M. Crisp bought at the sale made under the first mortgage by B. F. Eagles. There was testimony other than that of Cora and Farror Harrell as to the agreement of C. H. Owens with Opperlina Harrell.
The defendants contended that the purchase of B. F. Crisp at the sale under the first mortgage did not change his fiduciary relation towards Opperlina Harrell and vest the title to the land absolutely in him, but that in equity the effect of the purchase was to remove an outstanding encumbrance, the amount paid for the land being tacked to that secured by the second mortgage, under the rule that a second mortgagee can not buy the land at a sale under the first mortgage and hold the same, discharged of the trust created by the two mortgages, but he is entitled only to add the amount paid by him to the debt due under the second mortgage. Taylor v. Heggie,
The testimony of Cora and Farror Harrell as to the conversation between *200
C. H. Owens and Opperlina Harrell was incompetent, under prior rulings of this Court. Wilson v. Featherstone,
There was error in admitting the testimony of the two witnesses, as above indicated, for which the interpleaders are entitled to a new trial. The other exceptions need not be considered at this time.
We do not approve the course adopted in the court below of allowing the interplea to be filed by new parties after this Court had fully passed upon the merits of the pending action and directed judgment to be entered in favor of the defendants. The interpleaders should have been required to bring an independent action. The plaintiffs are not interested in their controversy with the defendants, and, besides, the pending suit had been settled by final judgment. While this is an irregularity, the court may proceed in the case as now constituted.
New trial.
Cited: Grissom v. Grissom,
(245)
