Bradham v. Robinson

73 S.E.2d 555 (1952) 236 N.C. 589 BRADHAM v. ROBINSON. No. 678. Supreme Court of North Carolina. December 10, 1952. *557 Henderson & Henderson and Percy L. Wall, Greensboro, for defendant-appellant. E. M. Stanley, Greensboro, for plaintiffs-appellees. ERVIN, Justice. The defendant makes these assertions by his assignments of error: 1. That the judge did not observe the provisions of G.S. § 1-185, specifying that "Upon trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the facts found, and the conclusions of law separately." 2. That the judge committed error in signing the judgment. The pleadings in the instant case raise these issues of fact: Whether Mt. Olivet Church is indebted to the defendant; whether the persons who executed the mortgage to the defendant were authorized to do so by Mt. Olivet Church and the annual conference or the bishop of the district in which Mt. Olivet Church is located; and whether the counterclaim is barred by the three-year statute of limitations. The legal importance of the last of *558 the issues is contingent on Mt. Olivet Church being indebted to the defendant. The parties agreed upon an unusual mode for the trial of the issues of fact in the court below. They stipulated that the question of whether Mt. Olivet Church is indebted to the defendant should be left to the jury, and that the other issues of fact should be decided by the judge. Where the trial of an issue of fact by a jury is waived by the parties to a civil action, the judge who tries the issue of fact is required by G.S. § 1-185 to do these three things in writing: (1) To find the facts on the issue of fact submitted to him; (2) to declare the conclusions of law arising on the facts found by him; and (3) to adjudicate the rights of the parties accordingly. In performing this task, the judge must state his findings of fact and his conclusions of law separately. Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639. The defendant argues with much earnestness on his appeal that the trial judge failed "to make any findings of fact" in respect to whether the persons who executed the mortgage to the defendant were authorized to do so by Mt. Olivet Church and the annual conference or the bishop of the district in which Mt. Olivet Church is located, and in that way ignored the plain statutory requirement that a judge who tries an issue of fact must find the facts on such issue. Candor compels the reluctant observation that the able trial judge fell somewhat short of the exceedingly high standards which ordinarily characterize his judicial labors when he made his findings on the issue of fact under consideration. He ought to have couched his findings in specific language not requiring contruction to reveal its meaning, and he ought to have embodied his findings in the document containing his conclusions of law and his adjudication. Nevertheless, we are constrained to reject the position of the defendant on this phase of the appeal under the rule that the findings of the trial judge will be construed to uphold, rather than to defeat, the judgment, if this may reasonably be done. 64 C.J., Trial, section 1149. When the findings of the judge are interpreted in the light of the pleadings, issues, and evidence, they may justly be held to mean that the three persons who executed the mortgage to the defendant were not authorized to do so by the congregation of Mt. Olivet Church and the annual conference or the bishop of the District in which Mt. Olivet Church is located. It thus appears that the judge found the facts on the issue of fact under consideration. Since he who does a thing through the agency of another does it himself, the judge found the facts in writing when he dictated his findings to the court reporter and caused the court reporter to transcribe them. He made proper conclusions of law and entered a proper adjudication on the facts found by him when he adjudged the mortgage to be "void and unenforceable" and ordered it canceled as a cloud on the title of Mt. Olivet Church to its church building and its parsonage. 12 C.J.S., Cancellation of Instruments, § 34. He certainly separated his findings of fact and his conclusions of law when he put them in different documents. These things being true, the judge complied in a substantial manner with all the requirements of G.S. § 1-185. The assignment of error based on the exception to the signing of the judgment raises the solitary question whether the facts found by the judge and the jury support the judgment. Deaton v. Deaton, 234 N.C. 538, 67 S.E.2d 626; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609. What has already been said makes it plain that the findings of fact of the judge justify the order for the cancellation of the mortgage. The verdict of the jury sustains the adjudication that the defendant is not entitled to recover anything of the plaintiffs on his counterclaim. Indeed, the verdict also supports the order of cancellation. A mortgage which purports to secure the payment of a debt has no validity if the debt has no existence. 59 C.J.S., Mortgages, § 87. For the reasons given, there is in law No error. *559 BARNHILL, Justice (concurring in result). It is admitted that the plaintiffs are at present trustees of Mt. Olivet A. M. E. Zion Church. As such they are vested with the title to the church property. The jury found as a fact that they, as trustees, are not indebted to the defendant in any amount. So what boots it whether those who signed the alleged mortgage were then trustees or mere interlopers, or whether the mortgage, when executed, was void ab initio or a valid lien upon the church property, or whether the judge complied with the statute in finding the facts on the issue submitted to him? So soon as the jury rendered its verdict, what the judge might or might not do in respect to the issue submitted to him became wholly immaterial. The jury has found that plaintiffs are not indebted to defendant in any amount. The paper writing is still of record, uncancelled. It constitutes a cloud on the title of plaintiffs. As there is no valid exception directed to the jury trial on the issue of debt, the plaintiffs are entitled to a judgment decreeing its cancellation. A decree to this effect was entered. I therefore concur in the conclusion that no error is made to appear.