Blake v. . Broughton

Davis, J.: The first and second exceptions relate to the testimony elicited, upon cross-examination, in regard to the conversation of Mr. Montague with Mr. Jones. His Honor stated that it was only admitted on cross-examination as affecting the credibility or accuracy of the witness. No citation of authority is needed to show that it was competent for the purpose stated. Besides, the objection does not appear to have been taken to the question, but to the answer, and “it is not admissible for counsel to be quiet and allow the evidence to come out, and take advantage of it if favorable, ^.nd if not, ask that it be stricken out and not considered.” Wiggins v. Guthrie, 101 N. C., 661, and cases cited; 1 Green-leaf Ev., §§459-461. The exceptions cannot be sustained. *228 The third and fourth exceptions relate to the testimony of D. PI. Crawford. His IPonor told the jury, as to this testimony, that Mr. Crawford’s assent to the transfer of the notes was not necessary, as he had parted with his interest in the property, and the testimony objected to in the third exception, even if incompetent, and if the objection had been taken in time, was cured by this charge. Bridgers v. Dill, 97 N. C., 222. As to the fourth exception, there was evidence tending to show that, prior to the alleged endorsement to the plaintiff, one W. N. A ndrews had agreed to buy from Crawford (the witness) and his wife, for the defendant Flora Wicker, the property embraced in the mortgages, and pay off and discharge the mortgage debt. The defendant Broughton had testified, in substance, that the plaintiff Blake told him that he, plaintiff, had paid off the mortgages at the request of said Andrews, and that he still owed Andrews on the property purchased of him; that some time after that Andrews came to him and told him he wanted $300. He replied, “I don’t owe you that much. ■ I have paid off the mortgages, as you requested.” That Andrews replied, he must have $300; to let him have it and he would make it all right with him; that he let him have $300, and told him that he, Andrews, would owe him a balance, and that he could not cancel those mortgages; that Andrews died still owing him a balance, and that was how he came in possession of the mortgages and did not cancel them. The plaintiff Blake testified, in substance, that he never told Broughton that he had paid off the mortgages, but he told him he had given Andrews the money to pay them off. He says: “I never spoke to Montague. I owed Andrews some $500 or $600 at the time, and I let him have $367.03 to take up the mortgages. He went off and returned with these papers (notes and mortgages) endorsed to me; I understood he was g >ing to pay the money and give me credit for the *229 money; he did not do that, but had the mortgages transferred to me and held me for the $500 or $600, and I paid it afterwards, and the notes secured by the mortgages have never been paid.” Andrews, with whom this conversation was had, is dead, but the evidence was admitted without objection. Montague, the assignee of one of the notes and payee of the other, had testified, for the plaintiff, that he had no recollection about the matter, “except that Andrews settled,” and, upon cross-examination, to what occurred between him and the defendant Jones. There was a conflict between the testimony of the defendant Broughton and the plaintiff Blake, in regard to the satisfaction of the mortgages. The witness Crawford was the obligor and mortgagor interested in having the notes paid before he executed the deed, free from incumbrance, to the defendant Wicker, and what Montague, the mortgagee and assignee, had told him, taken in connection with the evidence in regard to the agreement with Andrews to discharge the mortgage, made his testimony competent as corroborative, if not independent, evidence. At all events, the objection was to the answer and not to the question, and came too late, and there was no motion to withdraw it from the jury. McRae v. Malloy, 93 N. C., 154; Wiggins v. Guthrie, supra. The fifth exception was to the admission of the deed from Andrews and others to the plaintiff Blake. This was the deed for the property for which Blake himself testified that he was to pay $1,750, from the proceeds of which, according to the testimony for the defendants, Blake was to pay, and did pay off and discharge, the incumbrance upon the land in controversy, and the plaintiff Blake himself had testified in regard to the deed and its contents/and this evidence was before the jury, without objection, and, if it was competent to admit its contents, which was without objection, we are unable to see why the deed itself was not competent. It certainty could work no harm to the appellant, for lie had *230 produced the deed himself, and testified in regard to it, and the exception was properly overruled. The sixth, seventh and eighth exceptions are to the charge of his Honor. He charged the jury, that “if Blake, for a valuable consideration, contracted with Andrews to pay the mortgages set out in the complaint, and, in pursuance of said contract, paid the mortgages and had them assigned to him, such assignment of the mortgages, or the debts therein described, would operate as a discharge.” The appellant relies upon the fact that the mortgages were not discharged and entry of satisfaction, made upon the record in the office of the Register of Deeds, as prescribed by The Code, §1271. There was evidence tending to show that the mortgage debts had been discharged, and if so, though the mortgages wTere not marked “ satisfied ” on the Register’s books, they were no longer operative. After their satisfaction, though not so marked on the record, they certainly could not be held as a security for money loaned or advanced, to the prejudice of a purchaser for value from the mortgagor or his assigns. Having been paid off and discharged, the want of cancellation could not have the effect to revive them and give them new life and vitality to defeat such a purchaser. Walker v. Mebane, 90 N. C., 259; Ballard v. Williams, 95 N. C., 126, and the cases cited therein. This disposes of the sixth, seventh and eighth exceptions. The ninth exception could not possibly harm the plaintiff, as it was manifestly in his favor. The tenth, eleventh and twelfth exceptions are but repetitions, and have already been disposed of. The thirteenth exception is to the refusal of his Honor to give judgment for the plaintiff non obstante veredicto. By reference to the deed from the defendant Wicker to her co-defendants Broughton and Jones, it will be seen that she “covenants to and with the said parties of the second part (Broughton and Jones), and their heirs, that she is seized of *231 said premises in fee and has a right to convey the same in fee-simple; that the said premises are free from any incum-brance, .and that she will warrant and defend the title made herein against all lawful claims.” The defendant Flora A. Wicker, having been made a party defendant by the plaintiff, and having conveyed the land to her co-defendants, Broughton and Jones, with covenants of warranty, had a right to defend the title which she had so conveyed, and she was clearly entitled to the judgment given. There is no error. Affirmed.