McKinney v. . Sutphin

ClahksoN, J. The sole question involved in this appeal: Does the intervener, U. G. Belton, allege facts sufficient to entitle him to the surplus in the hands of the trustee? We think so. The intervener’s plea sets forth: (1) On or about 1 February, 1925, E. F. McKinney and wife conveyed to U. G. Belton a. certain tract of land, describing it. (2) That in the conveyance made and by agreement between E. F. McKinney and U. G. Belton, the said Belton assumed the payment of $1,000 and interest from 1 February, 1925, the actual amount due on a deed of' trust on the same land made by E. F. McKinney and wife to T. G. Fawcett, trustee, for Mr. and Mrs. S. J. Sutphin. (3) U. G. Belton tendered payment of the $1,000, and interest from 1 February, 1925, which the trustee and the Sutphins declined to accept. (4) Under the direction of the Sutphins, the trustee sold the land and it brought $1,260. (5) There is now in the hands of the trustee $240 balance over and above the $1,000 and interest paid on the note, which U. G. Belton claims he is entitled to, as he purchased from E. F. McKinney the equity of redemption and right of redemption. *321 Tbe plaintiff, E. F. McKinney, claims certain amounts far in excess of. the $240 due for usurious interest charged and paid by him to the Sutphins and sues them for it and the penalty under C. S., 2306, and attached the $240, the surplus over and above the note of $1,000 and interest secured by deed of trust made by the said McKinney to secure the Sutphins, now in the hands of the trustee. The deed from E. F. McKinney to the intervener, U. GL Belton, was made on or about 1 February, 192Í5, and the action for the fund in controversy was instituted 18 April, 1925. The intervener’s plea was filed in the action 13 June, 1925. 19 R. C. L. (Mortgages), p. 367, sec. 136, in part is as follows: “It is axiomatic that a mortgagor, until he has been divested of his interest in the property mortgaged by foreclosure and sale, generally has a substantial estate in the property, whether it be termed a right of redemption, an equity of redemption, or a full legal title, which he can dispose of subject to the mortgage.” The intervener had a right to file his plea in the action under C. S., 829-840; 2 R. C. L., '881. As to his other remedies, see Flowers v. Spears, 190 N. C., 747. The intervener becomes the actor and the burden of the issue is on the intervener. Sitterson v. Speller, 190 N. C., 192; Lockhart v. Ins. Co., 193 N. C., 8; Sugg v. Engine Co., 193 N. C., 814. When E. F. McKinney and wife deeded the land to U. G-. Belton, and in the conveyance made and by agreement Belton assumed the $1,000 note and interest from 1 February, 1925, Belton became the principal debtor for the amount assumed. Parlier v. Miller, 186 N. C., 501. Out of the sale of the land the debt was paid and the surplus belonged to Belton, who owned the equity of redemption. McKinney, by his deed of the equity of redemption and agreement, is estopped to claim the surplus. McKinney’s action for usury and the penalty was one against the Sut-phins. He could not attach the fund under his conveyance and agreement, as the surplus over the lien debt belonged to Belton. McKinney deeded his equity of redemption in the land to Belton, and the surplus was the equity in the land, and, under the deed, belonged to Belton. See Erwin v. Morris, 137 N. C., p. 48; Elliott v. Brady, 172 N. C., p. 828. In Waters v. Garris, 188 N. C., at p. 309-10, it is said: “From an examination of the above section (C. S., 2306), it will be seen that two remedies are provided for the enforcement of the penalties authorized by the statute: 1. Where a greater rate of interest than six per centum per annum has been paid, the person or his legal representatives or the corporation by whom it has been paid, may recover back twice the amount of interest paid, in an action at law in the nature of an action *322 for debt. Bank v. Wysong, 177 N. C., 390. 2. In any action brought by the creditor to recover upon any usurious note or other evidence of debt affected with usury, it is lawful for the party against whom the action is brought to plead as a counterclaim or set-off the penalties provided by the statute, to wit, twice the' amount of interest paid, and also the forfeiture of the entire interest charged. Put see Miller v. Dunn, post (188), p. 397.” Ripple v. Mortgage Corp., 193 N. C., 422; Pratt v. Mortgage Co., ante, 294. The plaintiff demurred ore terms to the plea of the intervener Belton. It is well settled that the demurrer of plaintiff admits all the material allegations of the plea of the intervener. The judgment of the court below sustaining the demurrer is Eeversed.