Robinson v. . Sampson

Clark, J.: It is competent to introduce as evidence of payment of an indebtedness secured by mortgage the entry of “satisfied” on the margin of the record signed by the mortgagee and witnessed by the Register of Deeds. The Code, Sec. 1271. Prima facie, satisfaction of the mortgage is that of the debt secured thereby, subject to evidence of an agreement to the contrary. Burke v. Snell, 42 Arkansas, 57; Chappell v. Allen, 43 Missouri, 213; Fleming v. Parry, 24 Pa. St., 47. But the plaintiff contends that on an issue, “What amount, if any, has been paid on the debt of $150 due Martha Ann Sampson?”, it is irrelevant to show that she created part of that debt by paying off a mortgage due *101 plaintiff’s intestate. On the form of the issue, this is apparent. We infer that the object of the defendant was to deny part of the indebtedness by showing that it was a mere voluntary and officious payment by Martha Ann Sampson of a mortgage indebtedness of her husband, the plaintiff’s intestate, and therefore not an indebtedness of the estate, Meadows v. Smith, 34 N. C., 18, and the appellant’s brief points out that in the answer filed before the elerk the issue asked for was, “What amount, if any, is the estate of Kennedy indebted to Martha Ann Sampson” — an issue which would have made the rejected evidence relevant. But the issue in its present form was settled by the clerk and certified up to the Superior Court at term, without objection, and His Honor was not asked to correct or amend it, as he might have done. Faison v. Williams, at this term. It is true that the issues arise upon the pleadings, but a defect in the issue cannot be assigned here when not excepted to below. Wills v. Fisher, 112 N. C., 529; Moore v. Hill, 85 N. C., 218; Alexander v. Robinson, Ibid., 275, and cases cited in Clark’s Code, Sections 392, 395. No error.