Faircloth v. . Johnson

Vaesee, J. The charge of the trial court is to be sustained if, upon any view of the evidence taken in its most favorable light for the defendant, but yet found to be true in its entirety, it supports the verdict. In order to constitute a valid cancellation under subsection 2 of C. S., 2594, on 13 September, 1913, the “endorsement of payment and satisfaction appearing thereon (on the mortgage and note) by the payee, mortgagee, trustee, or assignee of the same, or by any chartered active banking institution in the State of North Carolina,” contemplates clearly that such payee or mortgagee must be sui juris. In the first paragraph of the complaint it is alleged, and not denied by defendant, that the plaintiff attained her majority 15 September, 1922. Hence, it necessarily follows that, on 13 September, 1915, the date of the marginal entry in question, she was only 14 years old,, less 2 days. The mortgage indebtedness became due 1 January, 1923, and this action was tried at the September Term, 1924, of Sampson Court. The defendant testified: “I have known the plaintiff all her life, and knew her financial circumstances up to the date of this mortgage.” And on cross-examination, he further said: “At that time I knew neither the plaintiff nor her father had money enough to pay this mortgage that I knew of.” Other witnesses offered by defendant testified as to the non-age of the plaintiff. Therefore, it appears, not only from the admission in the pleadings, but from the testimony, which the jury has found to be true) that the defendant has, at all times, been fully cognizant of the plaintiff’s nonage. In Chandler v. Jones, 172 N. C., 569, Allen, J., says: “The contract of an infant is voidable and not void, and it may be either ratified or disaffirmed upon attaining majority at the election of the infant. If money is paid to an infant upon a contract and it is consumed or wasted, the infant may recover the full amount due under the contract.” Rawls v. Mayo, 163 N. C., 177; Hogan v. Utter, 175 N. C., 332; Gaskins v. Allen, 137 N. C., 430; Baggett v. Jackson, 160 N. C., 31. *432 In Weeks v. Wilkins, 134 N. C., 522, three years after arrival at majority, is held to be a reasonable time in which an infant is required to disaffirm, or he will be held to have affirmed' his contract. Gaskins v. Allen, 137 N. C., 426; Chandler v. Jones, supra; Baggett v. Jackson, 160 N. C., 26. If the infant has received money under such contract during his minority, he must, if he has it, or any part thereof, return it upon his disaffirmance, but if he does not have it, or the benefits therefrom, he need not return it or offer to put the parties in statu quo. Chandler v. Jones, supra; Baggett v. Jackson, supra. In Jackson v. Beard, 162 N. C., 105, an infant husband was allowed, upon attaining his majority, to disaffirm his consent to a sale of his wife’s land which he had during his minority signified by joining in her deed, with the result that her deed became thereby void. In the case of Phillips v. Hoskins, 128 Ky., 371, the same doctrine as held in Jackson v. Beard, supra, is held. That an infant may disaffirm a contract fully executed by both parties is held in Gannon v. Manning, 42 App. D. C., 206. In MacGreal v. Taylor, 167 U. S., 688, the Court held it not necessary, in order to give effect to the disaffirmance of the deed or contract of a minor, that the other party should be placed in statu quo. A disaffirmance after full age, of a contract made in infancy, will discharge a trust lien given to secure payment of the consideration. Hobbs v. Hinton Foundry and Machine Co., 74 W. Va., 443; 82 S. E., 267; Anno. Cas., 1917 D, 410. The defendant contends upon this evidence there was no delivery of the mortgage so as to make it effective. There was a prima facie case of delivery made out by the registration. Linker v. Linker, 167 N. C., 651. A presumption „of delivery arises from registration. Smithwick v. Moore, 145 N. C., 110. This is sufficient to support a verdict, even against opposing proof. Buchanan v. Clark, 164 N. C., 56; Fortune v. Hunt, 149 N. C., 358. The subsequent acts or declarations of grantor are not admissible to rebut presumption of delivery arising from registration. Helms v. Austin, 116 N. C., 751. Retaining possession of a deed, and the land conveyed thereby, will not overcome the presumption of delivery arising from registration, as between father and wife and children. Helms v. Austin, supra. Of course, nobody denies the right and the power of the father, T. Jarvis Smith, nothing else appearing, to give bis daughter the $1,500 note and mortgage in controversy herein, and since he registered it *433 prior to tbe sale of tbe lands in controversy to tbe defendant, wbicb sale, as against tbe plaintiff, only took place at tbe time of tbe registration of tbe defendant’s deed, we see no ground upon wbicb tbe defendant can justly complain, in tbe light of bis actual knowledge all tbe time of tbe non-age of tbe plaintiff. In the instant case, the cancellation on the original papers must bave been entered by the payee and mortgagee named therein, there being no evidence and no contention that the same bad been marked canceled by any assignee or North Carolina bank. In fact, it would seem that, if such bad been the case, the same rule as to disaffirmance by an infant would, also, apply. It would be totally unnecessary to cite authority to prove that the plaintiff’s suit to obtain benefits of the note and mortgage is an acceptance thereof and a disaffirmance of any cancellation that she bad made, even if such cancellation by her was supported by the evidence. On the contrary, the defendant alleges that the mortgage in controversy remained in the possession of the mortgagor, the father of the plaintiff, and that be, therefore, bad the right and authority to cancel the same of record, wbicb be did. Under the statute C. S., 2594, subsec. 2, there is no authority given to the register of deeds to enter cancellation of record upon the cancellation thereof by the mortgagor. It is expressly therein provided otherwise. Guano Co. v. Walston, 187 N. C., 667; Bank v. Sauls, 183 N. C., 165 In Tate v. Tate, 21 N. C., 22, tbe Court, upon facts quite similar to tbe instant case, rendered a like judgment to that entered herein. "We find it unnecessary to pass upon tbe very interesting question discussed in this case with reference to tbe form of tbe marginal entry. In any event, tbe infancy of tbe plaintiff is a sufficient shield to protect her against tbe cancellation pleaded by tbe defendant. Recently tbe question of infancy has been thoroughly considered and discussed with cogent reasoning and abundant authority in Morris Plan Co. v. Palmer, 185 N. C., 109, and in Hight v. Harris, 188 N. C., 328. Tbe instant case comports with tbe reasoning in these cases and Jackson v. Beard, supra, in wbicb it is said: “Tbe basic reason for permitting infants to avoid these deeds and contracts is that until they are 21 they are not supposed to bave tbe mental capacity to make them.” Upon tbe record in this case, it is apparent that, on account of tbe admitted infancy of tbe plaintiff, tbe charge of tbe trial court was correct. Therefore, we bold that there is No error.