Holder v. Home Mortgage Co.

ClabesoN, J. When this action was here before, seeking an injunction, it was continued to the hearing — 205 N. C., 206. From the referee’s report and conclusions of law and the judgment of the court below, and a careful review of the entire record, we are persuaded that the judgment on both appeals should be affirmed. The findings of facts of the referee indicate that: (1) C. E. Holder, and wife, Ola Holder, and C. H. Holder (unmarried), on 1 November, 1927, executed a deed of trust to the First National Bank of Durham, N. C., to secure a long-time loan of $2,500, payable to bearer, 12 years after date with certain periodical payments, and also to pay all taxes, insurance, etc., tacked on the deed of trust. The loan was made through the Home Mortgage Company and the deed of trust was properly recorded. (2) During the month of November, 1927, the Home Mortgage Company transferred for value to the First National Bank of Durham, North Carolina, the note and deed of trust executed by the plaintiffs. That between November, 1927, and February, 1932, the Fidelity Bank & Trust Company of Durham, North Carolina, became the holder and owner of said note and deed of trust hereinabove referred to. That the Fidelity Bank & Trust Company of Durham, North Carolina, was the holder and owner of said note and deed of trust between the dates of 15 February, 1932,' and 25 August, 1936. That the Unified Debenture Corporation acquired title to the note of $2,500 dated 1 November, 1927, executed by O. H. Holder, C. E. Holder and Mrs. Ola Holder, payable *133 to bearer and secured by a first deed of trust on property in Murphy, North Carolina. That said United (Unified) Debenture Corporation acquired ownership or title to said note for value and became entitled to the possession of the deed of trust securing said note during the month of January, 1937, and is now the owner and holder for value of said note. (3) The defendant Yictor S. Bryant has been duly and legally appointed substitute trustee in the before mentioned deed of trust. (4) That on 24 September, 1930, the plaintiffs executed to J. D. Mallonee, trustee, for the use and benefit of the defendant Fred Moore, trading as Moore Supply Company, a note in the amount of $1,807.27, payable on or before 24 September, 1931, which note was secured by a deed of trust on the lands mentioned and described in the deed recorded in the office of the register of deeds for Cherokee County, North Carolina, in Book 94, at page 300, which note and deed of trust were executed by the plaintiffs to the defendant Fred Moore to secure the payment of the account for the building material used in the construction of the stone building hereinabove referred to; that said deed of trust was filed for registration and recorded in the office’ of the register of deeds for Cherokee County, North Carolina, subsequent to the date of the filing and recording of the deed of trust executed by the plaintiffs to the First National Bank of Durham, trustee, dated 1 November, 1927. (5) “That on or about 11 July, 1932, the plaintiffs were in default in the payment of the monthly installments provided for in the said deed of trust, and that further the plaintiffs were in default in the payment of the city and county taxes against the real estate described in the said deed of trust.” It was contended by plaintiffs that the defendant Home Mortgage Company had breached its contract to lend them $5,500, to take up the $2,500 mortgage and pay defendant Fred Moore for material, etc., in building a new house on the lot in question. The referee held that plaintiffs were not entitled to recover any sum for the alleged breach. ' The court below found “That the agreement by Hodges, vice president of the Home Mortgage Company, is so indefinite that it cannot be enforced, because stipulations necessary to a complete contract had not been discussed or agreed to. In Thomas v. Shooting Club, 123 N. C., 285 (287), is the following: “ ‘In order to constitute a valid verbal or written agreement, the parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. And if an agreement be so vague and indefinite that it is not possible to collect from it the full intent of the parties it is void; for neither the court nor the jury can make an agreement for the parties.’ Chitty on Contracts, p. 68.” *134 The referee and the court below found all the material facts in favor of the defendant Unified Debenture Corporation. The reference in the present action was by consent. It is well settled in this jurisdiction that in a consent reference, upon exception duly filed to the report of a referee, the court below in the exercise of the supervisory power, and under O. S., 578, may affirm, amend, modify, set aside, make additional findings and confirm in whole or in part or disaffirm the report of the referee. Anderson v. McRae, 211 N. C., 197 (198); Threadgill v. Faust, 213 N. C., 226. The decisions are also to the effect that there must be some competent evidence to support the findings of the referee or the court below. We think there was sufficient competent evidence to support the findings of fact by the referee and the court below. Conceding that there was a valid enforceable contract for the $5,500 loan, the undisputed evidence is that the Home Mortgage Company was not the owner of the note at the time. We may repeat what was said, in Leak v. Armfield, 187 N. C., 625 (628) : “If subsequent judgment creditors or litigants over the equity of redemption could Tie up’ a first mortgage and effect its terms, it would seriously impair a legal contract. It may be ‘hard measure’ to sell, but this is universally so. The mortgagee has a right to have her contract enforced under the plain terms of the mortgage. To hold otherwise would practically nullify the present system of mortgages and deeds in trust on land, so generally used to secure indebtedness and seriously hamper business. Those interested in the equity of redemption have the right of paying off the first lien when due. We can see no equitable ingredient in the facts of this case. The mortgage is not a ‘scrap of paper.’ It is a legal contract that the parties are bound by. The courts, under their equitable jurisdiction, where the amount is due and ascertained — no fraud or mistake, etc., alleged— have no power to impair the solemn instrument directly or indirectly by nullifying the plain provisions by restraining the sale to be made under the terms of the mortgage.” The taxes, insurance, etc., are clearly set forth and tacked on to the deed of trust and can be recovered — “The tail goes with the hide.” On both appeals the judgment of the court below is Affirmed. DeviN, J., took no part in the consideration or decision of this case.