Bruner v. . Threadgill

Smith, C. J., after stating the facts. With this summary recapitulation of facts, we proceed to consider the successive rulings to which are taken the exceptions presented in the record. 1. The subscribing witness to the instrument, executed to supply the omission in the mortgage introduced to prove the execution, was permitted after objection to testify to the mental and physical condition of the mortgagor at the time. The objection is not pointed nor specific, but we understand it to be upon the ground of the tendency of the evidence to impeach the validity of the instrument or impair its force, as an assent to the sale by the mortgagee. We do not see any sufficient reason for opposing the admission of the testimony, as directly bearing upon the inquiry whether *365 the mortgagor in his life-time gave consent to the sale; but if there were, it has been rendered harmless and the objection to its introduction removed by the affirmative finding of the jury on that issue. 2. There were different estimates of the value of the lot, at the time of the mortgage sale, given by witnesses; and a witness examined by defendant was asked to state how a lot on the opposite side of the street, specified, compared in value with this in dispute, and at what price it was sold in October, 1868. This question, on plaintiffs’ objection, was disallowed. The estimate of persons called on to testify as to the value of land is derived from actual sales of similar property at the place or in the vicinity; from the opinions of competent persons acquainted with such property, and from the personal knowledge and opportunities of observation possessed by the witnesses. Upon these an opinion as to the value of any particular lot rests, and is entitled to greater or less confidence, as the means of information and the individual capacity of the witness to form a correct judgment from experience or otherwise, are greater or less. The credit due to the opinion may be arrived at by interrogating the witness as to his means of information and opportunities for forming an estimate, but it is not admissible so far to extend the examination as to introduce a new issue as to the value of another lot,-open to corroborating aud disproving evidence like that before a jury. The exclusion of the question is clearly warranted by the decision in Warren v. Makely, 85 N. C., 12, and for the reasons there given. The proposal here is in substance to ascertain what another lot actually sold for nearly two years afterwards, and how it compares in value with that in the mortgage, with no suggestion as to a similarity in condition or improvement, or any association except in proximity of locality. The testimony was properly rejected. 3. The instructions asked for defendants and refused are embodied in these propositions: *366 (a) Ten years having passed since the mortgagee entered into possession, and a longer time since default in the mortgagor, the law presumes an abandonment of the equity of redemption, and there being no rebutting evidence, that presumption must prevail. (b) The statute of limitations and that raising the presumption of abandonment began to run in the bargainor’s life-time, and continued to run against those who succeeded to his equitable rights. Accepting either date, that fixed upon for the default or that when the trustee entered into possession, and excluding the interval during which the operation of the statute was suspended, ten years, the period prescribed to raising the presumption, had not expired. That this interval should not be counted in computing the time in eases like the present, is expressly held in Edwards v. Jarvis, 74 N. C., 315, where the defendant claimed by possession under a deed made in September, 1865, and again in Hawkins v. Savage, 75 N. C., 133, where the action was for a tort committed in March, 1867, Settle, J., who delivered the opinion, saying: “The time elapsed from the 20th day of May, 1865, to the 1st day of January, 1870, shall not be counted so as to bar actions on suits, or to presume satisfaction or abandonment of rights, save only that actions of debt, covenant, assumpsit or account upon any contract, demand or penalty incurred since the 1st (20th) day of May, 1865, and the remedies thereon, shall be the same as they were in the year 1860.” 4. The possession of the mortgagee under the reconveying deed to himself as color of title, it is insisted, perfects the title and protects the estate from the plaintiffs’ claims. The proposition is not tenable so far as it relates to the legal title, for the mortgagee upon default was entitled to the possession, and no action for its recovery could have been successfully sustained by the plaintiffs, and it is only when those who could, and do not enter and sue,' that the right of entry and action is *367 barred as to them. Reynolds v. Cathens, 5 Jones, 437; Wittkowski v. Watkins, 84 N. C., 456. 5. That the mortgagee or trustee cannot parchase the trust property at his own sale, either directly or through the intervening agency of a third person, is too well settled by authority to admit of argument, unless his cestui que trust elect to confirm the sale and hold him to it; and this, not because fraud has been practiced, but for the reason that it may be; and the law will not sanction a proceeding that puts his personal and private interests in antagonism to his fiduciary obligations. The subject is carefully examined and the previous cases so fully reviewed in Froneberger v. Lewis, 79 N. C., 426, that we deem it needless to make further references. The right of election, however, resides in the cestuis que trust, who may affirm or disaffirm the sale. Patton v. Thompson, 2 Jones’ Eq., 285; Brothers v. Brothers, 7 Ired. Eq., 150. Even unsecured creditors have been, after many years, allowed to set aside a sale made by the trustee to an agent and a reconveyance to himself; and, even after, under proceedings in the court of equity by the trustee against the personal representative and infant heirs of the deceased bargainor, to compel them to elect, and their election to abide by the sale. Elliott v. Pool, 3 Jones’ Eq., 17. The only serious difficulty we have felt in granting relief grows out of the time allowed to pass before the suit was begun, and a suggestion of Rodman, J., that “ perhaps it may be that the statute of limitations of three years on a parol promise may furnish the proper rule,” made in the opinion in Joyner v. Farmer, 78 N. C., 196. But our conclusion is, that no such restriction can be put upon the exercise of the right of the mortgagor and his representatives to call the mortgagee to an account of the trust estate, before the inaction and acquiescence give effect to the statutory inference of a surrender. This would be clearly so, we think, under the limitations of the Code of Civil Procedure (not, however, applicable to the present case), since a time is prescribed for *368 bringing any action in the enumerated list, and a general limitation upon all others not mentioned, § 37. There is certainly no limitation of time in which a secured party or the mortgagor must call on the mortgagee or trustee for an account, because there are no adversary relations between them, until the presumption of the statute is raised; and we do not think, these relations were changed by the action of the mortgagee in this effort to transmit- the estate from, and, through the continuance of an agency, back to himself. These deeds as against the plaintiffs were, as if they had never been made, they electing so to treat the transaction. In Joyner v. Farmer, supra, the plaintiff' mortgagor was present at the sale and did not object, retained possession as tenant for a year, and received from the mortgagee the residue of the money for which the land sold after deducting the rent. There are no such recognitions on the part of these plaintiffs, and one only of them was at the sale, and all but one or two of them under age on January 1st, 1870, when the suspending act expired by limitation. We are of opinion that they have not lost their right to bring this action from laches and delay. The recent case of Dawkins v. Patterson, 87 N. C., 384, is not repugnant to the views expressed, and it is there held that the mortgagee may sell and become himself the purchaser under an express contract of the mortgagor that he may do so, and when he gives an additional year for the redemption, as the consideration for the privilege. There is no error, and this will be certified. No error. Affirmed.