*1 TEEM, 1938. N. C.] v. Lee. O’Briant O’BRIANT, O’BRIANT, O’BRIANT, JESSIE EARLE J. E. H. L. MAYE O’BRIANT, O’BRIANT, O’BRIANT BRADSHER D. and NEFFIE R. JONES, Trustee, LEE, FRANK MRS. E. FRANK V. MRS. E. CLAUDE BRYANT, LEE, Guardian, LOIS for ELSIE and VICTOR S. Trustee LEE. 1939.) February, (Filed 1 contemporaneous Mortgages Equity deed will declare absolute § 2 — reconvey contract to when transaction is to secure debt. by grantee contemporaneous to and a An. absolute deed contract reconvey designated stipulated upon sum within a appears equity mortgage upon will in if be declared it the face existing parties, there was a either instruments that debt between contrary created, plainly appears presently antecedent unless intent instruments, relationship the face of or when debtor instruments, by appear appears creditor does not from the it debtor dehors the instruments that in fact the transaction was between by parties and was intended to secure the debt. creditor competent dehors Same: Evidence 40 —Evidence instruments § determining reconvey in whether and contract constitute equitable contemporaneous In to have an deed and contract an action absolute reconvey by equity mortgage grantee when does declared appear that from the face of the instruments the relation of debtor parties, parol existed between the extrinsic evidence creditor deed, tending instrument to show the consideration for the dehors the by prior grantor, parties, negotiations possession between continued before, at, parties conduct of and after the execution instruments, competent, purpose contradicting writings, to show the entire such circumstances com- but determining petent whether fact the transaction intended parties to secure debt. equitable mortgage, to establish existence of debt 3. Same —In action by parol. be established reconvey have an deed and a action to absolute contract equitable mortgage, necessary appear upon it is not that declared grantor personally of the instruments that the deed is the face reconveyance obligated obligated pay the sum stated for the or be stipulated, the time since existence of the debt redeem within nature, by parol from the facts and trans- circumstances of the be shown just implication. tending fair conclusion to establish this action plaintiffs Appeal that not entitled and Error 50 —Decision § pleadings jury judgment hut that issue fact was raised for on the subsequent hearing. judgment precludes of nonsuit contemporaneous Where, an absolute deed and a in an action reconvey grantee equity mortgage, declared refusing plaintiffs’ judg- appeal motion determined on correctly entered, pleadings but issue ment THE IN SUPREME COURT.
O’Bkiant jury, was raised for law of the the determination of tlie the decision becomes *2 ease, subsequent hearing and on the it is error for the court jury judgment to refuse to submit the issue to the and enter for de- fendant. J., dissenting. Staoy, O. J., concurs in dissent.
Winborne, Appeal Ervin, Jr., by plaintiffs Special Judge, September Term, 1938, DubhaM.
Tbis is an action to deed from and a plaintiffs defendant contract of reconveyance from defendant con- plaintiffs delivered temporaneously construed as and adjudged to be equity mortgage; redemption tbe said mortgage; accounting. and for an Tbe was bere on a prior appeal at the Spring Term, 1938, and is reported in 212 N. C., facts, 793. Tbe including exact instru- copy tbe ment executed tbe defendant, are there set forth. Since tbe former appeal tbe complaint been amended allege relationship “That tbe of debtor and creditor did and does now exist plaintiffs between tbe and tbe defendant.”
When tbe case on for came trial below a jury impaneled was and was evidence offered tbe plaintiffs. During the examination of tbe plaintiff, Lex O’Briant, tbe jury was excused and plaintiffs tbe were permitted to continue with tbe examination for the purpose of allowing tbe record to show what tbe witness would have testified if permitted to do so. Tbis as substantially evidence recited tbe former appeal. was Tbe excluded over plaintiffs’ exception. Other similar testimony likewise excluded. Tbe plaintiffs and rested, upon mo- tion tbe defendant for judgment upon tbe record, being tbe court, of tbe opinion that no issue of fact to be submitted to the jury upon tbe record and opinion that upon record tbe upon tbe admitted paper writings in controversy plaintiffs are not entitled to tbe relief sought complaint, tbe rendered judgment dis- missing plaintiffs’ tbe action and granting defendant in tbe $250.00 sum of against plaintiffs. Tbe plaintiffs excepted and ap- pealed. Bennett n &McDonald and Guthrie & Guthrie plaintiffs, appellants. Brooks, McLendon & Holderness and Hedrick & Hall defendant,
appellee. J. After tbis cause was remanded for a new trial on tbe
BaeNhill, former on motion appeal, of plaintiffs, Olaude Y. Jones, Trustee, Mrs. E. Frank Lee, Guardian, Victor S. Bryant, Trustee for Elsie Lois TEEM, N. 0.]
O’Briakt complaint and tbe defendant parties made additional Lee, were jury of tbe impaneling Immediately after tbe accordingly. amended de- additional court tbat tbe tbe stipulated open defendants in tbis involved in tbe estate fendant claim no or interest real such tbat Frank of Mrs. E. superior rights Lee controversy tbe terms, pro- and subordinate to tbe rights they subject have are finally estab- and conditions of visions, E. defendant Mrs. tbe plaintiffs lished in tbis action between tbe Frank Mrs. E. Lee Frank Lee, individually. Thus, appears on tbis appeal. tbe real defendant interest party defendant Tbe executed delivered to tbe admit tbat plaintiffs contempo- writing which is a deed form and tbat paper absolute.in re- transaction, they tbe therewith, same raneously in which paper writing *3 ceived from tbe defendant a tbe tbe stipulated, reconvey bound tbe herself, under conditions therein parol 1934. Is December, to tbe or plaintiffs on property before transaction, tbe tend- of and circumstances proof surrounding tbe facts relationship tbat show tbe real intent of tbe tbe ing parties, tbat showing competent debtor and creditor for tbe existed, purpose is a Tbis mortgage? together tbe instruments construed constitute the one question presented. form in de- external principle
“Tbe tbat looks beneath tbe equity ap- mortgage connected with termining questions land Where to a mode of with real plied particular dealing property. a instrument is back as is conveyed by deed, given an absolute ordinarily condition same tbe transaction, containing tbe will agreement grantee tbat mortgages, being inserted but tbe sum of tbe a certain premises grantor tbe shall reconvey pay together at or a tbe two taken be what specified time, may before sale with a they purport repurchase, their face be—a mere case, a In tbe trans- mortgage. or first where tbe they may constitute must agreement action a sale and a contract tbe merely repurchase, ... if tbe case, fulfilled its terms. In tbe second according a all a transaction be tbe and incidents of mortgage, qualities mortgage attach, its and whatever form, whatever be external be tbe collateral a a maxim, always tbe stipulations, mortgage, applies once special emphasis.” a to tbis condition of with Sec. 3 Pom. 4th Ed. “Whether transaction Eq. Jur., any particular does thus to a sale with a contract to must, amount to or repurchase special circumstances; own large extent, depend upon for tbe in all the real finally turns, cases, upon intention parties tbe or writings, face of tbe as disclosed as shown tbe extrinsic however, criterion, A has been established general evidence. IN THE SUPREME COURT.
O’Bbiant furnishes a sufficient test authorities, concensus overwhelming of this cases; and whenever the great majority application test still courts, leaves a the American from obvious motives doubt, policy, generally have leaned favor criterion This is the continued existence debt or between the so liability parties, debt or conveyance reality intended as liability indemnity If indebtedness against liability. there is an or the parties, either a debt existing prior or a conveyance, arising debt from loan made at the or from conveyance, cause, subsistent, other this debt is still left dis- charged satisfied by conveyance, grantor but regarded owing still and bound to pay time, some future so that payment stipulated for in agreement in reality reconvey payment this existing then the debt, whole transaction amounts to a mortgage, whatever language may used, stipulation whatever inserted in . they may have the instruments. . . writings show on their face that the relation of debtor and creditor con- still tinues, and that its existence consequences contemplated by parties; they may entirely fail show any such con- fact, sist simply conveyance of an absolute and of a agreement naked to re- ... convey. the latter parol case extrinsic always evidence is admissible to show the real parties, situation existence of their intention to debt, debt, secure of that actual character the instruments as constituting mortgage.” Sec. 4th Eq. Pom. Ed. Jur., “From the controlling principle is a mortgage *4 of if irrespective form, designed its to secure the performance of it obligation, results a deed, though absolute in form and unquali- fied agreement for a by accompanying reconveyance of property defeasance, or must a be construed be a mortgage subject to re- where it is made demption manifest from a consideration all sur- facts and rounding circumstances that the parties thereto intended the conveyance to in operate by way no other mode.” R. C. sec. 261. L., 29, (This doctrine has page adopted with limita- Court.) tions this “Since by instrument, irrespective form, is if mortgage a intended security, as it follows that a deed with a pro- reconveyance vision a a for or defeasance of the estate on the perform- of certain whether conditions, provision ance is in made the deed itself a accompanying instrument, or is mortgage if intended to performance secure the the conditions stipulated, even though it is a conditional or conveyance form sale of some other In character. is important this connection it to note that the deed and the provision for do not of reconveyance themselves constitute a mortgage although TERM, 1938. 0.]
O’Beiastt absolutely is contrary, is so stated. On loosely rule sometimes intended transaction the deed he inception that at essential 0.R. sec. security.” L., page operate way proper the deed frequently expressions are used either “Very that the trans- or for which indicate either reconveyance the stipulation a operate mortgage relationship intended to that the action was conveyance.” after creditor between the debtor and existed presumed transaction is instances, “According such to one view the . however, be . . Elsewhere, as a of law a matter a is a matter of fact to mortgage, transaction presumed jurisdictions In other to rebut that presumption. admissible a condi- be, is as what regarded prima purports transaction facie of authority.” weight view of the sale, having support tional R. C. L., page sec. entertain as to the they may presumptive view that “Regardless for as to reconveyance, deed with a stipulation character of a or instruments instrument to establish the proof necessary standard that where the evi- agreed the authorities are constitute doubt, a court will hold of the transaction in dence leaves the state than a to be rather provision reconveyance mortgage deed with a that, generally This on the consideration conditional sale. rule based if effectually will be more subserved justice speaking, purpose than held to the transaction declared lenders of less under the pressure for as sale, conditional the judg- and free perfect circumstances which control the exercise them to avail than the effort made borrowers, ment in- order to obtain superiority, their advantage themselves L., 19 R. sec. advantages.” 39, page C. equitable back same time takes an absolute at the “When the grantor length certain contract the former a giving written grantee amount of the redeem premises by paying of time in which to to re- binding latter deed, debt, or the consideration a mort- together constitute redemption, papers on such convey not altered fact that transaction is And effect gage. and makes redemption, limits the time contract specifically to redeem. But if element in the time an essential does with the to redeem or grantor not, entirely optional leaves it according agreement, him it is redemption bind to effect than a sec. mortgage.” conditional 0. J., rather to be held a sale *5 (3), 81 page of a statements the law are foregoing supported by
The textbook on in texts. a full Likewise, monograph cited authority wealth of R. 1916B, found in L. Et. may A., page 27, Seq. whole subject be IN THE SUPEEME COUET. O’Briawt of various decisions American courts are there gathered On cited. questions citations particular presented here found on 240-243. pp. 126-135, pp. 213-236, and a cita- pp. Likewise, summary tion and of the later decisions be found the annota- tions in A. L. E., page Alexander, Conway Ed., U. Law S. case leading of subject the distinction sales, mortgages conditional
the Court laid down followed states, the rule since then in most of the of that the intention the parties governed as to whether enter- they were ing into an absolute sale with a of right repurchase in the grantor, whether the conveyance given security. as a It further held that, in order for the transaction to be a a mortgage, there must debt continuing to favor of subsequent exist the grantee conveyance. Marshall, J.,C. there made following oft-quoted deny statement: “To of power of individuals, capable acting for to make themselves, a purchase of sale lands defeasible of at money or, a future in other day, words, to a with a make sale reservation to vendor of a land at a repurchase the same fixed and at price specified would be transfer to time, the court of in a chancery, degree, guardianship considerable of adults as well as of infants. Such contracts certainly prohibited either letter or the law. policy But policy the law does pro- hibit conversion a real mortgage into sale. And lenders under money pressure less circumstances which control the perfect and free borrowers, than exercise the effort by persons this description made to avail themselves advantage of this superiority, order obtain inequitable ad- For vantages. leaning this reason of courts them, has been against and doubtful cases have been decided to generally but as mortgages, valid, conditional sale, really intended, inquiry every must the contract be, specific whether in the case is a security or an actual repayment sale.” L. Parks v. 79 A. Mulledy, R., 934, is a case in which there was absolute with contract to in reconvey. said: “The tention of the time an agreement to execute a deed is consummated is determinative whether the title is trans irrevocably ferred, or the merely security for the payment of a performance debt or the obligation.” Clinton v. Utah Construc Co., 40 tion Idaho 659, Pac., In Hoover v. Bouffleur, 133 Pac., (Wash.), plaintiff, need loan money with which to installments on a pay applied due accommodation. The necessary refused to make the mortgaged property, loan but offered to buy *6 FALL TERM, N. 729 O.]
O’Briant v. Lee. for the amount of the loan and to proposed ($250.00) give plaintiff $325.00. an option repurchase Thereupon, within three months for absolute, the plaintiff conveyed the a deed property and took back consti option agreed. The transaction was held to tute a mortgage, in view of the fact was grossly the amount advanced inadequate consideration notwithstanding conveyance, absolute Harris, refusal of previous the defendant loan. to make a Sherrer v. 13 S. 730W., (Ark.), is to the same effect.
The real character of the transaction and intention of the the true parties may be inquired into, shall govern, notwithstanding may have adopted the form of an absolute and bond for And resale. if such transaction was instru- really loan, and these ments were executed to it, secure it is a mortgage; mortgage and once Williams, Dixon, it so continues. Bishop v. Sears Ill., 105; Cal.,
The rule regards the parties circumstance executes their real -and prevents either of intention, parties to the instrument a fraud on committing the other as an convey it absolute by claiming ance, notwithstanding In given accepted security. other words, the real is permitted transaction Cabrera v. Amer proved. Bank, ican Colonial U. S., L. real intention Ed., controls. In North Carolina we have decisions to like effect. Streator ones, J 10 N. C., plaintiff to show that deed abso seeking lute was executed and In holding delivered as for a loan. security that parol evidence was it is it be that competent, there said: “Can said the deed embraces the or can the deed whole be said that part contradicts that the contract which provided redemption? It never been considered that defeasance and an absolute convey ance will stand together. seems me that in such case the execution the deed execution
the residue of the contract remains executory.” McCannon, 16
Poindexter is a which a bill of sale was executed for a slave. There was an indorsement the bill of sale providing plaintiff $400.00 within paid J., Ruffin, twelve months the date the bill should sale be void. “A said: and a conditional are speaking Court, sale allied to nearly each difficult to whether say other, transaction is the one or the other. particular The difference them is that former is a for a debt latter and the is a for a purchase price paid, paid, to be to become absolute on a par ticular or a event, purchase, accompanied by agreement to resell upon It is latter kind that particular terms. runs so a mort- nearly into THE COURT. IN SUPREME
O’Beiant commonly who for as men those gage; needy distressed tbeir estates drawn get into such contracts, very anxiety *7 that effect, either which a to that denotes again, produces stipulation from to part was which did not intend property, party favorite the material, or that was so as to make conclusively, price inadequate the Courts to reclaim. power that should have point interest, the law But there is rule mortgages. lean towards them considering In diffi- conditionally. that a not each case sale shall be made the it is once character of the transaction. When to ascertain the culty redemp- consequences account, to a all determined the con- stipulation follow, and the tion, like, notwithstanding any conditions, is not lost hard trary; power redemption by any the to course according nor shall it the any point be fettered to under considera- particular of the Court.” the Referring to of variation the however, susceptible tion it “It is, is further said: transaction, circumstances parties, attending acts the I it can be or the other. do not mean that which show it to be the one that witnesses to show either contradicted testimony be, it was meant to expressed was different from that that bargain deal- But I that the acts and their parties’ unless there be fraud. mean material show intent.” ings are to Martin, C.,N. a which was a deed ease there 470,
Gillis stipulated he grantee whereby absolute and a memorandum to that if within two would refund years the land was sold he to purchase money interest, excess received over the bargainor the J., Ruffin, says: with the costs of C. “The character gether repairs. parties, is to be determined the intention security, operate if however was that it should as a that, ascertained, Court so and the debtor will be entitled to redeem.” regards it, to to permitted Parol evidence was show the intent and establish C., instruments a also N. mortgage. Thompson, See Howlett v. in which that 369, great disproportion it was held evidence it is paid strong value the land and sum that deed was given merely. Overby, Blackwell v. Hearne, 45 a 38, is to like effect. Mason v. N. involved C., and memorandum from in which bound grantee absolute he himself to day reconvey grantor repaid purchase money by certain. It was held that instruments an intent that they disclosed Black, should as a operate Steele v. N. C., was a deed admitted grantee that had to agreed absolute she execute a bond to if the reconvey repaid. syllabus, money digests the is as follows: that correctly case, “The in an absolute deed remained in con- bargainor possession of the land FALL TEEM, 1938. N. O.]
O’Beiant is dehors own, it as his sale, using for more tban after the veyed year the idea and is inconsistent with the declarations hard seller was purchase; if, addition, proved half than pressed money, that the advanced was more execute agreed the value of the and that the premises, out bond and refused to do a sufficient case is made reconvey it, sum ad- to a plaintiff .reconveyance entitle the answer, with “The set pretext up by vanced interest.” is said: at half price to sell his land plaintiff willing absolutely levied on to avoid the after it had been exposure public sale, is too notice.” In Robinson advertised, flimsy be entitled to trans- whether a C., 65 N. it is held that determine Willoughby, as the regarded it will be action is defeasible purchase, is indebted if at the time of the the vendor former, supposed sale reconveyance such, vendee, continues with a *8 such indebtedness. Crabtree, absolute deed, it held that a 394, Waters v. N. C., was agreed, treated as a when it upon face, may be further was execution, purpose. of its that such would be its contempo- was not sufficient evidence of however, that held, agreement. raneous and a deed absolute Williams, 123 N. involved a 170, v. C.,
Watkins solicited plaintiff There evidence that reconvey. to de- it. on land and hold The mortgage the defendant to take aup sug- and him, transferred to having mortgage fendant objected and to him. This was to. The deed executed agreed gested Parol reconvey. a contract to contemporaneously executed discussing the intent, was admitted to show the Jones, principles Streator v. 10 N. the Court said: “-Since preferred when bills uniformly followed, established mortgage on its face into a to convert a deed absolute was omitted redemption debt: It must the clause (1) appear in- advantage; (2) or undue The fraud, through ignorance, mistake, parties, declaration established, by simple tention must be inconsistent circumstances dehors the deed proof but of facts and by of deeds otherwise, solemnity purchase; with idea of absolute Kelly witnesses.’ ‘slippery memory always exposed would 41 N. Bryan, C., first himself under the no to shelter attempt “The makes plaintiff think has shown that he is protected but and we insists, he proposition, proposition. the second by of a transaction is doubtful whether the face upon
“Again, where, or a conditional courts sale, intended make THE SUPREME COURT. IN
O’Bkiaett because, means a mortgage, consider it inclined to equity needy. exercised over conditional sales, oppression sec. McCannon, Eq. Jur., 16 N. 3 Pom. 377; C., Poindexter v. facts, but shows the writings, sustains “The oral evidence not conclusion seems that our circumstances, fully so understanding be irresistible.” White, v. Wil 128 N. cites Watkins C., Court, Porter noted cases
liams, and the above supra, Willoughby, Robinson v. supra; In Perry 154 N. C., also v. Kearney, with Sandlin approval. See other cases C., many foregoing Surety Company, face, on its that a deed absolute are cited with holds approval, harmless defendant with a contract to save the together construed surety, defendant was default of for whom the plaintiff account of any a mortgage. constituted pur- evidence is parol competent,
Thus, appears of the show the consideration deed, hut to pose contradicting the agreement and show that the deed and to establish whole from the separate apart clause defeasance reconvey'is consideration was the After real is: What all, deed. set it is not when especially deed? This shown parol, sum advanced fact, it was a instrument, If, out here. plaintiff, as contended usury with interest and repaid loan now to morals would equity good permit principle claim land free of letter “bond” and insist the strict redemption. 22-7. Creditors are lender. Prov., The borrower is servant methods circumvent sometimes to discover means and diligent against oppression. the law the debtor safeguards provides protect *9 transaction will any Courts of examine equity, carefully therefore, there is a creditor, possibility oppression, between debtor and where of need to end that to him circumstances justice may the be done whose him creditor. place unscrupulous in a to position imposed A can longer pound demand his flesh. Shyloclc
Pennsylvania mortgages. courts hold that all such transactions are originated application Other courts hold that transaction the fact for a loan it such an that this presents opportunity oppression alone will the instruments the of a We give quality face content to hold that on the affirmatively appear when it does security, instruments that were intended and such the therefrom, cannot be inferred the actual intent of fairly the the criterion controlling time the the true determining nature instruments; effect of the that, establishing intent, the TERM, N. C.]
O’Bkiant v. Lee. bas instruments that right prove by debtor the evidence cbehorsthe the transaction was in fact between debtor and creditor for the of a loan. instru-
If was a either antecedent or the debt, presently created, there contrary ment must be construed to constitute a unless intent of the instruments. If this fact clearly appears upon the face does not then of the the appear, possession property by the continued grantor; consideration; the of the inadequacy negotiations the originated application loan; out for a the circumstances sur- transaction; at, the rounding parties before, the conduct the after execution of instruments cir- are some the cumstances be considered.
But the contention is no reciprocal obligation here made that there is resting redeem; on the that it with them grantors entirely optional as to whether they repurchase shall within the time exercise stipulated; that it does appear upon papers face there is any personal obligation grantors pay amount of Evi loan and interest. is not essential. alleged This bemay dence the indebtedness is not It required writing. proven by parol. Furthermore, such enable obligation’would only to look to after mortgagee mortgagor remaining for any deficiency application proceeds of sale of premises payment of the sum secured. the cases where the has arisen whether the transaction was one or of instruments purchase security and the disclosed a debt the amount of and no alleged purchase price other sum is paid it has been held that this fact conclusively determines Keteltas, the character of transaction as a mortgage. Horne 605; Robertson, Y., Lowe, 197; Hickos v. Brant Cal., Mo., 129. See also numerous authorities cited in on pages 392-394, *10 Connor, J., this case. It was then said by for speaking the Court: “It THE SUPREME COURT. IN v.
O’Beiant action the in this pleadings on face of the appear does not the the creditor the defendant and relation of and debtors existed between by the delivery plain- at the date of the the deed executed plaintiffs defendant, tiffs, conveying complaint land described at which she by agreed, and executed land, their upon them the said plaintiffs, reconvey option with money, in accordance terms her certain sums nor of said does it so face of provisions contract, appear pleadings, reference made a of the deed and which are of this action be construed as if they and which must purposes complaint is allegation instrument. The that effect were one An the pleadings thus raised on denied the answer. issue is jury.” is judgment below ' Reversed. made of this disposition C. about to be J\, dissenting: The Stacy, in- law discussed is the record. Much of the not warranted is
applicable. not and could not have first nonsuit was place, question then appeal- on former as were presented appeal plaintiffs on a and a new trial was award- judgment verdict, from a rendered ing All that was about an in the there said issue charge. ed error jury judgment fact for the was addressed motion on case” on pleadings; present it cannot be the “law of the hence from of nonsuit. It is far judgment cry from appeal to proof. allegation not law of the case that are entitled Secondly, plaintiffs pleadings, question directly presented 212 N. C.,
decided. otherwise, not alleged, and cannot be the fact relation of creditor debtor existed between question, execution and the instruments here delivery admitted “that upon hearing, open plaintiffs court, mistake, relief on mutual seeking any grounds fraud, reform instruments mentioned in the seeking pleadings like fraud, influence,” or other grounds ignorance, mistake, undue overreaching (R., p. 20.) Any suggestion oppression matter. plaintiffs careful to disclaimed, were refrain specifically characterization. This to a narrowed the case Co., 190 C., 284, 721; law. See N. 129 S. Perry Surety E., William Rabon, Patterson, 98 E., 830; C., son N. S. Ray 165 N. White, 128 773; E., C., E., 24; S. Porter v. S. Watkins *11 735 TEEM, 1938. N. 0.] Lee.
O’Briant Williams, accords E., 123 N. 31 S. 388. admission C., 170, v. with, Tbe Lueders, ante, on S. v. plaintiffs. and is pleadings binding 558. is
There neither nor allegation proof principle sufficient invoke the often v. Bul jurisdiction referred in this as “doctrine of McLeod lard.,” 84 515, N. on 86 N. approved rehearing, C., C., 210, upon argued, the case was decided. v. apparently Harr elson Cox, ante, 651, 207 N. 178 S. v. 393. C., 361; Taylor, E., Murphy law The imputes wrong prevent imposi fraud some legal only to West, c., Hinton 551; C., tion. v. 207 N. 178 210 N. C., 708, E., S. S. 188 410. 712, E., here, S. Where all is there oppression disclaimed, as occasion for in any imputation. The decision Robinson v. Wil 65 N. loughby, C., 520, is inapposite.
The parties
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Potato Co. v.
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Co.,
O’Briakt of said equity prop law and together taken constitute cen debt.” The denial erty It is either or not true raises no issue fact. true allegation tral jury Perry for a determine? a matter law. What Jones, Co., 10 N. The case is unlike Streator v. Surety supra. C., *12 Newbern, E., S. and cases Newbern v. following, e.g., the whole did not contain alleged writing where was written sides case on the predicating both their agreement. Here, This is law is for the new word, yet says meaning jury. Court North Carolina. from the If instant it has come imposition case, there be in the any situation At no time has the litigation. and this plaintiffs costly plaintiffs now denying the defendant’s and she seeking, comes into have. candor she right disarming With they our and what understanding memorial of says: court “Here If it not mean what it we did. contains the whole does agreement. no charge then let court tell us what it means. But let there be says, were strangers, has been committed. We fraud, mistake none all sui and acted advice counsel.” juris, Recognizing no other, soundness of and that facts would position support this court, battle as thus plaintiffs, open accepted gauge stated defendant, occasion for is no the Court abdicate Jenette, supra, said in Potato Co. v. is very its functions. What was much point. on fairness of of the written
Relying sanctity of our stability decisions, paid $7,000 word and the in back question, plus $2,816.47 taxes, and after property of trust on the expiration plaintiffs’ option, she executed counsel who examined property $8,000. Evidently secure loan of this loan it was thought good. the title their did not elect exercise within plaintiffs option the year If had to do. have lost they anything by neglect, their own default and not defendant’s. is attributable to record, decided The case on which the majority should opinion is for an departs. My affirmance, having vote heretofore plaintiffs been determined entitled to pleadings. concurs this dissent. J.,
WiNBORNE, notes L. R. 1916B. A., There be no independent evidence of the debt—no bond, bill, note taken for payment: implication rest wholely nature, facts, transaction; circumstances sufficient that its fair, just implication. . . . when Indeed, purpose the creditor is to avoid the appearance (as alleged), here it is not to expected that he would defeat byit introduction of an express covenant for other independent its existence. security disclosing Mobile Bldg. Robertson, & Loan Assn. 65 Ala., to what is regard Without said it was here of the court duty below to submit the jury. cause It was so determined on appeal. former The law as declared in this respect is the law of