| N.C. | Jun 5, 1839
After replication to the answer, the original defendant died, his representatives were made parties, and the cause was heard upon the proofs. The only matter in contestation is, What was the agreement upon which the plaintiff transferred to Crissman the benefit of his bid at the execution sale? The latter has insisted that it was an act purely gratuitous, and that Lyon was to be in no way interested in the purchase. There are several circumstances rendering this (269) representation highly improbable. The answer avers that the defendant had sold the land, so conveyed to him, for tobacco, and had tendered to the plaintiff his ratable proportion of this tobacco. What means this alleged tender, if Lyon had no interest in the land? Again, the price bid by Lyon was $101; he was able to pay, with his own means, but $26, *224 and applied to Crissman for a loan of $75 to enable him to complete a highly desirable purchase, and, instead of this arrangement, Crissman takes the land to himself, at $101, pays $75 with his own money, and borrowed from Lyon the $26, being the exact and full amount of all he had been able to get together to make his payment. And this is alleged to be done solely to disappoint the next highest bidder to Lyon. And for the money so lent by Lyon there is no security.
But the proofs are full and positive, so much so that the only defense made at the hearing was that no parol evidence ought to be received of the agreement. If the objection be that the agreement is void, because not reduced to writing, and this objection could avail anything, it should have been set up in the pleadings. But this has not been done. The plaintiff avers one agreement, and the defendant sets up another; and the parties have left it to proof which representation of the transaction is the true one. Either may consist with the fact of the sheriff's deed having been made to the defendant. The sheriff was no party to the agreement, and the proof of it does not violate the rule which forbids parol evidence to be received to contradict or explain a written instrument.
The conveyance of the legal estate to the original defendant is declared good as a security for the money advanced by him to the plaintiff; the ordinary accounts as between mortgagor and mortgagee are to be taken and the plaintiff is to let in to redeem, on payment of what may be found due.
PER CURIAM. Decree accordingly.
Cited: Cohn v. Chapman,
Dist.: Bonham v. Craig,
(270)