Jones v. . Norris

60 S.E. 714 | N.C. | 1908

After stating the case: We are of the opinion that the defendants' evidence failed to show any mistake of the draughtsman in writing the mortgage. He testifies that it was written in the terms directed my the mortgagee, and that he read it over to her and she said it was as she wished. Green v. Sherrod, 105 N.C. 197. The expression was, however, ambiguous, and parol evidence was competent to explain its meaning. While it is true that it is the mortgagor who is speaking through the draughtsman, and usually the pronouns "I" or "my" refer to the actor or speaker, the connection in which they are used may sometimes make it doubtful to whom they refer. To interpret the word "my," as used in this mortgage, to refer to the mortgagor would give the entire sentence no reasonable meaning. A mortgagor could not impose upon the mortgagee such a condition. He owed the (87) debt unconditionally, and could not, without the consent of the mortgagee, make the payment of it dependent upon his living until it was paid. In any aspect of the case, the expression is ambiguous. Conceding that it is doubtful whether the contingency upon which the notes were to become noncollectible was the death of the mortgagor or mortgagee, "parol evidence is admissible to show the situation of the parties and the circumstances under which a written instrument was executed, for the purpose of ascertaining the intention of the parties and properly construing the writing." The testimony did not contradict, add to, or alter the writing.

In Braswell v. Pope, 80 N.C. 57, parol evidence was held admissible to show that at the time the note in controversy was signed there was an agreement between the parties that it should be surrendered upon certain contingencies. Here the parties agreed that if the mortgage debt was not paid during the lifetime of the creditor, it should not be collectible. This agreement was collateral to the notes — left them in full force and effect, but provided that upon the contingency of the creditor dying before their payment they were not to be collected. In reducing force agreement to writing the language used was ambiguous. We can perceive no good reason why the declarations of the parties, made at the time the mortgage was executed, cannot be shown to explain the ambiguity. The evidence is clear, reasonable, and uncontradicted. The jury properly found that the word "my" referred to Mrs. Thigpen. Plaintiff says, conceding that by the clause in the mortgage the death of Mrs. Thigpen rendered it not enforcible, this agreement did not affect the personal liability of the defendants on the notes, and that he was entitled to a personal judgment on them. We are of the opinion that, construing the entire clause in the light of the declarations of the mortgagee, the words "afterwards it is not collectible" refer to and include the notes. The language used by the draughtsman is not that of (88) a lawyer, and must be given a construction which will effectuate the manifest intention of the parties. We concur with the opinion of his Honor. There is no reversible error.

No error.