McMillan v. . Baxley

MaoRae, J. (after stating the facts): As far as the case and the record show, there was no motion for reference to state an account between mortgagors and mortgagee as demanded in the answer. Indeed, as this was an action brought by the alleged purchaser of the land under mortgage sale, and until the issues were determined whether the plaintiff Paisley McMillan were a partner or agent of the mortgagee, J. L. McMillan, or a bona fide purchaser for value *583 and without notice, it would not have boon proper to have ordered an account. If the jury had found that Paisley McMillan was the agent of the mortgagee in making the sale, or was a partner and interested in the mortgage, or was the manager and clerk of the mortgagee and had notice of the state of the account between mortgagors and mortgagee, and that defendants did not owe the amount claimed as the mortgage debt, the sale would have been set aside, and if the two causes of action could be joined, the mortgagee being a party to this action, an account might have been ordered. On the trial the defendants moved to strike out the name of J. L. McMillan as party plaintiff, and excepted to the denial of their motion. Misjoinder of parties is to be take» advantage of by demurrer. The misjoinder of unnecessary parties is mere surplusage under The Code, and not a fatal objection. Clark’s Code, sec. 239, and cases there cited. The defendants moved to strike out the reply, and this motion being denied, they excepted. According to the record the reply was filed within two days after the answer and apparently at the same term of the Court. No reason is given us for striking it out. If the plaintiffs were not entitled to file it on account of laches it was in the discretion of the presiding Judge to permit it to he done. The Code, §274; Mallard v. Patterson, 108 N. C., 255. The defendants except for errors in refusing instructions asked by defendant. It is stated in the case that the first instruction was given as asked, except that the words “at once” were omitted. On reference to the first prayer we find no such words as “at once,” and defendants’ counsel has not pointed out to us the error, if any there were. The fourth prayer was refused. This was in effect that the burden was on the plaintiffs to prove that Paisley McMillan, the purchaser, was neither the partner nor agent of *584 tlic mortgagee when he bought the land at the mortgage ■sale. In the preceding instructions the presiding Judge had fully charged the jury that the burden was entirely upon the plaintiffs to prove everything fair and honest, and no advantage taken of defendants; that the law presumed fraud and looked upon the power of sale with suspicion; this was going as far as the defendants could require, and we can see no view of the case which cast the burden upon plaintiff Paisley to prove that he was n.ot the partner or agent of the mortgagee. The fifth prayer for instruction was, “ It being proved and admitted that Paisley McMillan was the clerk and bookkeeper and manager of J. L. McMillan’s business, the burden is on plaintiffs to show by a preponderance of the testimony that everything connected with the sale was fair and regular.” Ilis Honor had submitted it to the jury to determine whether the plaintiff Paisley was the agent of the mortgagee. He had instructed them that “Even if J. L. McMillan and Paisley McMillan were partners, or if Paisley was his book-keeper, clerk, and agent in other matters, he would still have the right to purchase at the sale. If Paisley bought the land without any agreement to turn it over to his brother, and paid $150, he is the- bona fide purchaser for value. If Paisley know of defendant’s claims, he bought subject to defendant’s equity, if he had any. One partner is the agent of the other within the scope of the business of the partnership, and not beyond. One partner may act as agent for the other, but he may also act for himself, and the fact that Paisley was clerk in the store and managing the mercantile business of J. L. McMillan is not in any way inconsistent with his right to buy the land for himself.” The fifth instruction was refused in the form asked for by defendants, but the jury in the general instructions were told that in the dealings between the mortgagee *585 and mortgagor the law required the mortgagee to show that the dealings with the mortgagor in respect to the mortgage were fair. If the plaintiff Paisley had brought his action alone he would have been governed by the ordinary rule that he should make out his case, as any plaintiff suing for the recovery of land, and all matters of defence should be offered by the defendants; but by reason of his joining the mortgagee, J. L. McMillan, as co-plaintiff his Honor placed the burden upon the plaintiffs, as in an action for the foreclosure of a mortgage, to show that all was fair and regular ; and this mortgage having in it. the power of sale, his Honor followed the authorities in instructing the jury that the law looked upon the sale with suspicion; he even told the jury that fraud was presumed and cast the burden upon the plaintiffs of proving that no advantage was taken of the mortgagors. TVe think that he went as far as the defendants could have required, and that there is no principle which would cast the burden upon plaintiff Paisley to prove that he was not acting as agent of the mortgagor in the sale under the mortgage. This was a matter of defence open to the defendants. The sixth prayer was, “That before a power of sale conferred in a mortgage can have any force it must be shown to the satisfaction of the jury that due advertisement, and everything necessary or required to be done to make the sale fair, was done.” His Honor substituted the words “by a preponderance of evidence” for the words in italics. The phrase, to the satisfaction of the jury, is considered to bear a stronger intensity of proof than that of “ by a preponderance of evidence.” But we know of no rule of evidence which would require of the plaintiffs a stronger degree of proof than is ordinarily required of the plaintiff in a civil action. The same principle does not apply as is *586 stated in Ely v. Early, 94 N. C., 1; Kornegay v. Everett, 99 N. C., 30; Loftin v. Loftin, 96 N. C., 94, and. the cases therein cited, that to correct a mistake in a deed, the proof must be full and clear, and not merely preponderate. The seventh and tenth prayers were predicated upon a charge of surprise or undue influence in procuring the execution of the bond and mortgage by defendants. This charge is not found in the answer nor warranted by the evidence. The eighth prayer does not appear in the case. If there were error, it was the duty of defendants to point it out, and if necessary they might have applied for a writ of cer-tiorari. Not having done so, we may assume that the exception was abandoned. From the hurried manner in which the transcript seems to have been written we think it more than probable it was omitted by the copyist. The ninth prayer was properly denied, as it assumed, as proved, certain facts upon which the testimony was conflicting. The defendants further except “for error in refusing to allow amendment of answer to conform to facts proved,” and we may comprehend in this exception the refusal to submit the issue as to surprise and undue influence. As we have said, there was no evidence to warrant it. The plaintiff Paisley McMillan was permitted to testify to the posting of notices of sale; defendants objected and excepted, because the notices were in writing and ought to be produced. The rule requiring the production of the writing itself as the best evidence does not extend to mere notices or to matters collateral. 1 Greenleaf Ev., 561; Jones v. Call, 93 N. C., 170; State v. Credle, 91 N. C., 640. Defendants except “for expression of opinion in regard to issue as to proper probate.” When plaintiffs offered in evidence the mortgage from defendants to J. L. McMillan *587 and defendants objected to “proof of execution,” they also offered an issue, “Was the mortgage properly probated and acknowledged?” His Honor, upon the objection to the reception in evidence of the mortgage, properly held that the probate was substantially in accord with the requirements of the statute, and we concur with him, upon examination of the certificate. This disposes of the point. It was not a question for the jury; it was the province of the Judge to pass upon the sufficiency of the probate before the deed was permitted to be left to the jury. The Act of 1796, The Code, §413, has no application here. Ilis Honor instructed the jury to inquire as to whether the mortgage of 1885 was paid when the mortgage of January 1,1886, was given. The defendants excepted upon the ground that it was admitted that the new mortgage was given for the old one. The evident construction of the charge upon this point was that they should inquire whether the former mortgage was paid or satisfied by the latter, and as this was admitted no harm could have come to defendants from the instruction. Defendants further excepted “ for error in permitting the jury to pass on the question of agency, it being admitted that Paisley McMillan was clerk and managing the business for J. L. McMillan.” The issue was submitted at the instance of defendants in their fourth issue tendered. His Honor carefully instructed the jury on the point made. He discriminated between such agency as might arise from the fact that Paisley was the clerk or manager or partner of J. L. McMillan in other matters, and an agency to conduct the sale. The last exception is “for inconsistent findings of the jury.” This is directed to their responses to the issues wherein they find that Paisley McMillan is the owner and entitled to the possession of the land, and that J. L. McMillan is the *588 legal owner and entitled to tlie possession of the same land. There is certainly an inconsistency in those findings, but is it such as the defendants can complain of? The action was brought for the recovery of the land by Paisley McMillan as the purchaser at the sale under the mortgage, and the pleader must have joined J. L. McMillan as a plaintiff and presented the issue as to his ownership in order, if it should be held that Paisley was not a purchaser for value, and the relation of mortgagor and mortgagee still subsisted, that J. L.'McMillan might recover possession as mortgagor. Wittkowski v. Watkins, 84 N. C, 456. There was no demurrer on the ground that two causes of action had been improperly united, and therefore the objection, if valid, was waived. Finley v. Hayes, 81 N. C., 368; McMillan v. Edwards, 75 N. C., 81. The jury having found the issues presented in favor of plaintiffs, the only result of an error in submitting an issue as to the ownership of J. L. McMillan and the affirmative response thereto would be a judgment in favor of Paisley McMillan non obstante the finding in favor of J. L. McMillan. As neither of the plaintiffs objected to the form of the judgment in favor of both, it is not incumbent upon us to reform it. We see nothing in the objection to the issues tendered by plaintiffs. After a careful consideration of the numerous exceptions eapiestty pressed by defendants’ counsel we see-no error of which defendants can complain. No Error. Affirmed.