Alexander v. Virginia-Carolina Joint Stock Land Bank

CONNOR, J. Defendants’ assignments of error on their appeal to this Court, based on their numerous exceptions to tbe admission of evidence offered by tbe plaintiffs at tbe trial of this action, cannot be sustained. The testimony of tbe plaintiff, Wm. T. Alexander, was competent as evidence tending to show that it was tbe intention of both tbe plaintiffs and tbe defendants that tbe plaintiffs should convey by their deed of-trust to tbe Southern Trust Company, trustee for tbe Virginia-Carolina Joint Stock Land Bank, only tbe Shepherd Farm, and that it was not tbe intention of either party to tbe deed of trust that any part of tbe Mountain Hill Farm, which adjoined tbe Shepherd Farm, should be conveyed thereby. In Archer v. McClure, 166 N. C., 140, 81 S. E., 1081, it is said: “Tbe doctrine is elementary that parol evidence is not, in general, admissible between tbe parties to vary a written instrument, but it is equally well settled that mistake, fraud, surprise, and accident furnish exceptions to tbe universal principle, and parol evidence, in any case brought within one of tbe exceptions, is admitted to vary tbe writing so far as to make it accord with tbe true intention and agreement of tbe parties. These exceptions rest upon tbe highest motives of policy and expediency, or otherwise an injured party would generally be without remedy.” In this action, tbe remedy sought by tbe plaintiffs is tbe reformation of tbe deed of trust, so that it will accord with tbe true intention and agreement of tbe parties thereto, with respect to tbe land conveyed by *452 the deed of trust. Plaintiffs allege that in that respect the deed of trust does not accord with the true intention and agreement of the parties, because of their mutual mistake. On this allegation, if established by the proof, plaintiffs are entitled to the equitable remedy of reformation. There was evidence other than the testimony of the plaintiff, Wm. T. Alexander, tending to establish the essential allegations of the complaint. It appears from the application to the defendant, Yirginia-Carolina Joint Stock Land Bank, which is in writing, and signed by the plaintiff, Wm. T. Alexander, that the loan, if made, was to be secured by a first mortgage on “A tract of land, situate in Scuppernong Township, Washington County, North Carolina, adjoining Lake Phelps, and the lands of A. Q. Walker, A. S. Holmes, the Woodley heirs and others, containing 1,500 acres more or less.” In the complaint filed by the Yirginia-Carolina Joint Stock Land Bank in the action against the plaintiffs herein, for the foreclosure of the deed of trust, the land sought to be sold is described as “a certain tract or parcel of land situated in Scupper-nong Township, Washington County, North Carolina, containing 1,500 acres, more or less, known as the Shepherd Farm, adjoining Lake Phelps, - the lands of A. Gr. Walker, A. S. Holmes, the Woodley heirs and others, a detailed description of said land being set out in the aforesaid deed of trust, which is recorded in the office of the register of deeds of Wash-ton County in Book 89, at p. 22.” It is admitted that the description in the deed of trust includes part of the Mountain Hill Farm. The judgment and decree relied upon by the defendants in this action, as a bar to plaintiff’s recovery, was rendered in an action entitled, “Yirginia-Carolina Joint Stock Land Bank v. Wm. T. Alexander and his wife, Ethel P. Alexander.” The Southern Trust Company, trustee in the deed of trust, was not a party to that action. In this jurisdiction it is uniformly held that the legal title to land conveyed by a mortgage or deed of trust, to secure the payment of a note or bond, is in the mortgagee or trustee. Weathersbee v. Goodwin, 175 N. C., 234, 95 S. E., 491. In an action to foreclose the mortgage or deed of trust, the mortgagee, or trustee is an indispensable party. 42 C. J., 44, sec. 1557. The legal title remains in the mortgagee or trustee until the land is sold and conveyed by him under the power of sale or by a commissioner under a decree rendered in an action to which he is a party. Upon the facts of the instant case, whether the absence of the trustee as a party to the action to foreclose the deed of trust rendered the decree of foreclosure void, or was a mere irregularity, the judgment and decree in the action entitled, “Yirginia-Carolina Joint Stock Land Bank v. Wm. T. Alexander and his wife, Ethel P. Alexander,” does not as a matter of law bar the plaintiffs’ recovery in this action. The descrip *453 tion in the complaint in said action of the land which plaintiff therein prayed should be sold was at least ambiguous. Ward v. Gay, 137 N. C., 397, 49 S. E., 884. Defendants excepted to the refusal of the court to allow their motion at the close of all the evidence for judgment dismissing the action as of nonsuit. They also excepted to the refusal of the court to instruct the jury that if they believed all the evidence and found the facts to be as testified, they should answer the issue “No.” Assignments of error based on these exceptions cannot be sustained. The evidence was properly submitted to the jury under a charge to which there was no exception. We find no error in the trial or in the judgment. It is affirmed. No error.