Styers v. Alspaugh, 118 N.C. 631

Styers v. Alspaugh

118 N.C. 631 | N.C. | 1896

Montgomery, J.:

It appears from the complaint and answer that the notes and mortgages executed by the-defendant Reich, to Montague and Kerner, were transferred to the defendant Alspaugh, and it follows, therefore, that these mortgagees were not necessary parties to this action. Where the defect of parties is apparent on the face of the complaint, the objection must be made by demurrer; if not so apparent, by answer. Code, Sections 239 and 240; Kornegay v. Steamboat Co., 107 N. C., 115; Leak v. Covington, 99 N. C., 559. If the above admission, however, had not been-made in the answer, the defendants, on discovering, during the tidal, the defect of parties plaintiff, *635should have moved to amend their answer and to have-Montague and Kerner, the mortgagees, made parties. His. Honor below very properly refused to allow them to present their case to the jury, and thep, after an adverse ver- . diet, to make the exception that there was a defect of parties to the suit. The plaintiff was satisfied, it seems, to-proceed, relying upon the sufficiency of the assignment of the notes and mortgages by the mortgagors, Montague and Kernel’, to the defendant, Alspaugh, and the assignment by him to the plaintiff; or if not, upon the-subjection of the equitable interests of the defendant Reich in the mortgaged land to the payment of his debt. The defendants should have made their objection on account of defects of parties before the case was put to the jury. His Honor instructed the jury that upon the testimony they should find the issues in favor of the plaintiff. The defendant Alspaugh testified that he, with his. own-money, paid off the notes and mortgages and took an-assignment of them from the mortgagees to himself. What the witness said about an agreement- between himself and one of the mortgage debtors in reference to the payment of the debt is too vague to amount to anything in law. The fact was that Alspaugh paid the notes and mortgages-with his own money, a'nd took an assignment of-them to-himself, and afterwards used them as collateral security for a debt he owed the plaintiff. There is no error in the-rulings of the court below, and the judgment is affirmed.

Affirmed.