Kidder v. . McIlhenny

Smith, O. J. This case has been elaborately argued, and numerous points eliminated from 'the record and pressed upon our attention, which in the view we take, need not be considered in its final disposition. The action is to recover judgment upon a promissory note of the defendant, and to foreclose a mortgage of land given for its security. The feme defendant claims the land under an execution sale upon a judgment recovered by a creditor of her husband, the other defendant, and both in "their separate answers allege that when the note was executed by the husband he was not indebted to the plaintiff, and hence the deed, being voluntary and without consideration, was void as to his creditors. It does not appear that the debt, for which the sale under execution was made, existed at the date of the mortgage, or before the year 1876, eight years thereafter. The answers further allege that the original note was surrendered and a new one given in its place, ante-dated so as to correspond in terms with the first, except in its recital of a consideration of money loaned ; and that thereby the secured debt was discharged, leaving but a naked legal title in the mortgagee which, as an un *129 mixed trust, passed to the purchaser under execution by virtue of the act of 1812. Bat. Rev., ch. 44, § 4. The defendants also rely upon a written contract' of the plaintiff with the defendant McIlhenny, the substance of which both answers undertake to set out, for the cultivation of the defendant’s farm for the common benefit of each, and that their entire crop was destroyed by excessive rains, and all their labor and expenditures in its cultivation lost. The plaintiff replies to this, that upon a full and final settlement of their joint farming operations, McIlhenny fell in. debt to him for that and other matters, in the sum for which at that date the original note was given, and that the second note was executed as a renewal and with the express understanding that it was to occupy the place of a secured debt in the mortgage. From these conflicting allegations there were several issues extracted, and without objection from either party, submitted to the jury, and the jury find them all in favor of' the plaintiff. These findings establish the following facts : The parties did come to a settlement in 1868, and the first note was then executed for the balance ascertained to be due-with the mortgage to secure it. The second note was executed in place of the first, and as a substitute for it, and the plaintiff’s statement of the partnership contract for the year 1868 is correct, and the defendant’s version of the matter is not true. The only ruling of the court on the trial of the issues, to-which an exception 'was taken, as appears from the statement of the case, was the admission of the letter-press copy of the partnership contract of 1867, as evidence, on the ground that the original was the best evidence and no notice had been given the defendant to produce it on trial. The plaintiff swore on the trial that when the original contract was entered into, he struck off and kept a letter-press copy of the instrument and left the original with the defendant *130 and he had never seen it since.. The defendant in his answer, setting out its substance from memory, and duly verified, declares that he does not have the original contract and never had it in possession since its execution. He had issued a notice to plaintiff to produce the original, but the notice was not served. To the sufficiency of this exception several answers are naturally suggested. 1. The evidence was not important to the plaintiff’s case.. His action was on the substituted note and the admission of its execution devolved on the defendants the onus of proving matters of defence against the obligation. The settlement was the basis of the execution of the note, not the nature of the dealings and transactions of which it was the consummation. It was indifferent to the plaintiff to en-quire into the provisions of the absent instrument, and its ■existence was not essential to the parol proof that was offer•>ed of full and final adjustment, and that the note represents what was admitted to be due. ■ 2. If the defendant did not have the contract as he alleges, why should a notice requiring him to produce, what he did not have and could not control, be given ? 3. If, as .argued,, the proof of search was not .sufficient to ¡show the loss,, why was not that objection then made, instead of the objection that no notice had been given the de-ffendant.? Had it been, we cannot say that .abundant proof ..of the search may not have been furnished. The defendant was content with the plaintiff’s general declaration that he ■did not have possession, and it was not an error of which he ■can complain. The fact is positively and unequivocally .sworn to by the plaintiff that he did not then have, nor had .ever had the lost instrument in his possession since the press copy was taken, and that it then passed into the >de.fendant’s hands. The general rule is that when an objection might have '.been removed if made in apt time, and it is afterwards made, *131 it will not be entertained. Thus where a copy of a bill annexed to a deposition is proved and it did not appear why the original was not produced, and objection was made to the evidence because it was secondary, at the reading of the deposition on the trial, it was disallowed, because not made when the deposition was given, nor by a preliminary motion to suppress, and the court remarks that “ had the objection been taken before trial, either at the examination of the witness or on a motion to suppress, to the proof of the copy, without producing the original or showing its loss, the opposite party would undoubtedly have secured the production of the original, if in existence, or if it be lost or destroyed, been prepared to account for its absence.” York Company v. Central R. R., 3 Wall., 107. So here, bad the defendant then made his objection to the sufficiency of the preliminary enquir}^ as to the search,that defect might then perhaps have been supplied by á further and fuller examination, and it is unreasonable for him to acquiesce and to put his objection on a want of notice to himself, and then be permitted to assign for the first time, in this court, a ground for his objection of a nature wholly different. The defendant expressed then no dissatisfaction as to the proof of loss, and he cannot be heard to do so now. Bridgers v. Bridgers, 69 N. C., 451. But what harm can come to the defendant from the admission of the press copy of the contract ? It has no bearing upon a substantial issue. The existence of an original in no way affects the plaintiff's right of action, and .its stipulation and terms, inasmuch .as they are immerged in the final settlement, do not impair the defence. It is plain, then, that the admission or rejection of the evidence is wholly immaterial and furnishes no ground of exception. 4. It was insisted for the defendant that the issues do not dispose of the matters in controversy upon the pleadings and that there should have been, and should now be, a *132 further issue passed on involving the validity of.the mortgage as against the feme defendant, who by her purchase acquires all the rights of a creditor to impeach. It is to be noticed that an actual fraudulent intent is not imputed to the defendant Mcllhenny. in making his mortgage, by the wife, and both attack its validity only by alleging that it was voluntary, resting on no consideration, and hence is void. This allegation is-fully met by the finding of the jury that the indebtedness did exist to the full amount of the debt secured, and as this is the only impeaching fact alleged, there is nothing left to the jury to determine affecting the mortgage, and no issues are proper except they involve facts controverted in the pleadings. Outside of the allegations and denials no enquiries can properly be made. Nor ought the defendants to have been content with the proposed issues if they deserved others. They should then have asked for other issues, and if necessary, they would have been allowed, or if not allowed, the refusal would have constituted matter of exception. It might produce serious inconveniences and delays, if when a party has opportunity to propose further and other issues, he refuses or fails to do so, he would then be heard to. complain of the consequences of his own neglect, and thereby increase the costs as well as delay the determination of the cause. We think the point now made for the first time in this court, and even if taken in the court below in apt time, cannot be supported. The last exception relates to the change of the notes and the effect upon the mortgage security. The notes are for the same sum and for a like time of interest; the substitute does not increase the sum contracted to be' paid, and the jury find expressly that it was the intent of the parties to preserve the mortgage security. It is true upon the plea of the defendant the notes, both of them, would bear interest only at six per cent; the last, because it so stated in the note *133 borrowed money was not its consideration, and the first, for the same and the additional reason that it is not so expressed upon its face. The sums contracted to be paid and the sums recoverable, if the defendant chooses to avail himself of the statute, would be in both cases the same, and we know of no way by which the substitute could work a damage to the defendant, or impair the mortgage. The deed was, when made, effectual to secure a debt bona fide due ; the renewal can work no injury to any one. Hyman v. Deveretux, 63 N. C., 624, decides that a bond given in renewal of one secured in a mortgage, even to an assignee, retains its place in the mortgage as a secured debt. The notes if usurious by reason of the rate of interest expressed, are good as to the principal sum and legal interest, and if effectual as to the residue against the debtor, are equally so against the purchaser and owner of the equity of redemption. For this sum the judgment was entered. Coble v. Shoffner, 75 N. C., 42. There are, therefore, no errors in the proceedings, except as to the form of the judgment in reference to the sale of the lands, and we need only cite on this point Mebane v. Mebane, 80 N. C., 34. Our attention has been called to C. 0. P., § 259, as authority for the form of the judgment, which directs an absolute sale and conveyance by the sheriff or referee appointed for the purpose, of real property adjudged to be sold, and this clause is supposed to comprehend a foreclosure sale under mortgage. There have been many cases before the court since the adoption of the code, in which the old rules of equity procedure in regard to judicial sales, including judgments to foreclose, have been recognized as still in force down to the recent ease of Mebane v. Mebane, supra, when the subject was carefully considered; and we should be reluctant to disturb a practice so well settled by giving such wide scope to the words of the statute. The section in which *134 they are found is a part of the chapter defining executions, and the mode of enforcing them, and directs how lands adjudged to be sold shall be sold, as in other forms of final process. Why the agency of the court is called a referee, and why this mode of judicial sale should be beyond the further control of the court ordering it, find no explanation in the law itself. We can hardly suppose such sweeping-effect as is now proposed to be given to the mandate could have been in the contemplation of those who adopted the new system, and we must seek elsewhere for some mode of satisfying its requirements. Accordingly, section 319 authorizes proceedings, after the death of a judgment debtor, against his heirs, devisees or legatees, and also against tenants of real property, owned by him and affected by the judgment; and clause 2, of section 261, provides for the satisfaction of the judgment by execution “ against real or - personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property or trustees.” The words thus find a meaning, and the difficulty involved, a solution in their application to lands of others, charged with the payment of the judgment, and which the process, like the writ of venditioni exponas, requires specifically to bo sold as contradistinguished from that directed against the debtor’s property generally and to pay his own debt. Thus restricted, the clause leaves unabridged that important function of a court of equity which directs and controls a sale made by its order and under its authority, through a commissioner of its own appointment, and which is transmitted to the present superior court, its successor. We are not disposed to leave the debtor mortgagor -without the protection he has always received when the aid of the court was asked to sell his lands for the payment of the mortgage debt, unless plainly so required by the statute. The judgment, corrected as we have explained,, is affirm. *135 ed, and the court below will proceed with the case in con formity to this opinion. Let this be certified. Pee, Cueiam. Modified and affirmed.