Winchester v. . Winchester

Olahic, O. J. The jury found, by consent, that Mary W. Winchester was executrix of the estate of Dr. F. M. Winchester, and that the estate owed the plaintiff $480, and upon the evidence that the lot bought by Mary W. Winchester brought its full value. The plaintiff excepted, because the court did not submit to the jury four other issues, whether the sale was made at the request of the defendant executrix, or at the request of the owners and holders of the bonds secured by the mortgage; whether the executrix procured the sale to be made for the purpose of obtaining title to the land for herself, freed from the claims of the plaintiff and other creditors, and lastly, whether she procured the sale to be made to defeat the claim of plaintiff and other creditors. Monroe v. Fuchtler, 121 N. C., 101. It was not error to refuse to submit these issues, among other reasons, because there was no evidence to justify doing so, except as to the issue suggested as to whether the owners and holders of the bonds secured by the deed of trust to Little, trustee, requested him to make the sale, and it was no error to refuse to submit this issue because it would not have affected the judgment even if the issue had been found as the plaintiff desired. Besides, the finding of the jury that the plaintiff paid full value for the property, it must be noted that Froneberger v. Lewis, 79 N. C., 426, relied on by the plaintiff, has no application, for the defendant executrix was not buying at a sale made by herself, but was purchaser at a sale made by the trustee in the deed of trust. Moreover, she had an interest to protect, for she had joined in the mortgage releasing her right of dower, and it was not improper that she should protect herself by buying the property. *485 As for tbe alleged error in reciting tbe contentions of tbe parties, tbis cannot be considered -unless it appeared tbat counsel at tbe time called tbe matter to tbe attention of tbe court, and asked tbat it be corrected. Bradley v. Mfg. Co., 177 N. C., 155, and cases there cited. No error.