Metcalf v. . Ratcliff

*219 Barnhill, J. Defendants do not bring forward in tbeir brief assignment of error No. 1 and tbe same is deemed to be abandoned. Assignments of error numbered 2 and 3 are untenable. When the plaintiffs undertook to offer evidence of the execution and delivery of the alleged deed from the Browns to M. L. Eatcliff and busband and to sbow tbat the same conveyed the 71-acre tract of land the defendants objected. Tbe court thereupon asked plaintiffs’ counsel wbether be bad made any demand for the production of the deed. Tbe plaintiffs’ counsel then demanded its production. No response was made to the demand. Tbe defendants did not deny the possession thereof or assert their inability to produce it. They now contend, however, tbat the oral testimony should not have been admitted for the reason tbat they were given insufficient notice to produce the deed. Tbe record does not disclose tbat any such contention was made at the time the objection was entered. Tbe ruling of the court in this respect cannot be held for error. Tbe evidence, which is the subject matter of assignment No. 4, to the effect tbat Don C. Young was the writer of the letter to which the witness referred was later admitted without objection. Furthermore, the answer of the defendants sets out tbat Don C. Young was employed to obtain the deed from the Browns. This assignment is without merit. Assignments numbered 5 and 6 are directed to the refusal of the court to enter judgment of nonsuit as to the defendant Murray I. Eatcliff. There is evidence tending to show tbat this defendant was in possession of the property and is claiming some interest therein. This evidence presented a question for a jury which defeated the motion of nonsuit. At the conclusion of all the evidence the defendants tendered an issue as to the ownership by Murray I. Eatcliff of the purchase money notes, and excepted to the refusal of the court to submit the same. This issue was raised by the pleadings. Tbe only evidence tending to support the same was the testimony of Euby Warren, sister of the defendant, who said: “I saw these notes in the possession of Murray Eatcliff before my father’s death on February 15, 1931.” She did not undertake to testify under what conditions or circumstances be bad possession. Did her father give the notes to the defendant to inspect, or to aid in the collection thereof, or to present to the makers, or to place in a position of safety? She does not undertake to say. Tbe notes were not endorsed and it does not appear tbat the defendant, Murray I. Eatcliff, is the one who produced the notes at the bearing. Nor is there evidence tbat any consideration was paid therefor or tbat be was in possession before or after the execution of the reconveyance by the mortgagors. If it be conceded tbat her statement constitutes more than a scintilla of evidence, the answers to the first and second issues submitted were, of necessity, predicated upon a finding tbat these notes were owned by the original *220 payees and were discharged by the reconveyance. Furthermore, if this defendant held the notes they had not been endorsed by the original payees. He possessed them subject to any equity of the payors as against the payees. Satisfaction of the notes by the reconveyance was as binding upon him as upon the original payees. While the record of the application and appointment of a substitute trustee may have been properly admitted as evidence as such, it was not evidence as to the ex parte statements of M. I. Ratcliff contained therein that he owned the purchase money notes. Even if it be conceded that the evidence of Ruby Warren was competent upon the issue tendered, and it was sufficient to take the case to the jury thereon, under the circumstances of this case, error in the refusal to submit the same is not of sufficient merit to justify a retrial. The defendants excepted to the judgment for that it decrees the cancellation of the foreclosure deed to M. I. Ratcliff and wife when no issue in respect thereto was raised by the pleadings. Perhaps the judge below overstepped his jurisdiction by inserting this provision in the judgment. However, the defendant, Murray I. Ratcliff, is a party defendant in this action. The jury has found that the defendant, M. L. Ratcliff, is the owner of the property. The answers to the issues submitted, when viewed in the light of the charge, constitute a finding that the deed from the mortgagors to M. L. Ratcliff and husband was executed and delivered in satisfaction of the purchase money notes, and that the said M. L. Ratcliff and husband were, at that time, the owners of the notes. The evidence of the plaintiff in respect thereto includes testimony that from and after the execution of said deed by the mortgagors, M. L. Ratcliff was in possession, claiming the property as her own. She leased it to various tenants; she listed it for taxation and she made affidavit that it was her property. Likewise, she testified in a court proceeding that she owned the same. The defendant, M. I. Ratcliff, offers no evidence of ownership by him except the ex parle proceedings for the appointment of a substitute trustee and the deed in foreclosure. From the findings of the jury it appears that at the time of said alleged foreclosure the notes secured by the trust deed had been fully paid and discharged by the reconveyance of the mortgaged property. Under these circumstances the foreclosure was a nullity and this defendant cannot claim to be a purchaser for value without notice. Being a party to this suit he had full knowledge at the time of said foreclosure of the contentions of the plaintiffs that the notes were discharged. Therefore, the findings of the jury establish the fact that the foreclosure deed is ineffective to convey title to the property. It cannot materially affect the rights of the defendants to have the judgment to so declare. *221 We have carefully examined the assignments of error predicated upon exceptions to portions of the charge of the court. Some of these are directed to designated statements as to the contentions of the parties. None of them are of sufficient merit to justify a new trial. Simply stated, the defendant, M. I. Ratcliff, is the judgment debtor in the two judgments held by the plaintiffs. She owns 71 acres of land and has been in possession thereof, claiming it as her own, since the execution of the deed of reconveyance from the mortgagors. There is no record evidence of her present ownership. The judgment establishes the fact that this land is hers and is subject to execution for the payment of her just debts. In the trial below we find No error.