Jones v. . Norris

CONNOR, J., after stating the case: We are of the opinion that the defendants’ evidence failed to show any mistake of' the draughtsman in writing the mortgage. lie testifies that it was written in the terms directed by the mortgagee, and that he read it over to her and she said it was as she wished. Green v. Sherrod, 105 N. C., 197. The expression was, however, ambiguous, and parol evidence was competent to explain its meaning. "While it is true that it is the mortgagor who is speaking through the draughtsman, and usually the pronouns “I” or “my” refer to the actor or speaker, the connection in which they are used may sometimes make it doubtful to whom they refer. To interpret the word “my,” as used in this mortgage, to refer to the mortgagor, would give the entire sentence no reasonable meaning. A mortgagor could not impose upon *87 tbe mortgagee such a condition. He owed tbe debt unconditionally, and could not, without tbe consent of tbe mortgagee, make tbe payment of it dependent upou bis living until it was paid. In any aspect of tbe case, tbe expression is ambiguous. Conceding that it is doubtful whether tbe contingency upon wbicb tbe notes were to become noncollectible was tbe death of tbe mortgagor or mortgagee, “parol evidence is admissible to show tbe situation of tbe parties and tbe circumstances under wbicb a written instrument was executed for tbe purpose of ascertaining tbe intention of tbe parties and properly construing tbe writing.” Tbe testimony did not contradict, add to, or alter tbe writing. In Braswell v. Pope, 80 N. C., 57, parol evidence was held admissible to show that, at tbe time tbe note in controversy was signed, there was an agreement between tbe parties that it should be surrendered upon certain contingencies. Here tbe parties agreed that, if tbe mortgage debt was not paid during tlie lifetime of tbe creditor, it should not be collectible. This agreement was collateral to the notes — left them in full force and effect, but provided that, upon tbe contingency of tbe creditor dying before their payment, they were not to be collected. In reducing this agreement to writing tbe language used was ambiguous. We can perceive no good reason why tbe declarations of tbe parties, made at the time the mortgage was executed, cannot be shown to explain tbe ambiguity. Tbe evidence is clear, reasonable and uncontradicted. The jury properly found that tbe word “my” referred to Mrs. Thigpen. Plaintiff says, conceding that by tbe clause in the mortgag’d the death of Mrs. Thigpen rendered it not enforci-ble, this agreement did not affect tbe personal liability of tbe defendants on tbe notes, and that be was entitled to a personal judgment on them. We are of tbe opinion that, construing tbe entire clause'in tbe light of tbe declarations of tbe mortgagee, the words “afterwards it is not collectible” refer to and include tbe notes. Tbe language used by the draughtsman is *88 not that of a lawyer, and must be given a construction which will effectuate the manifest intention of the parties. We concur with the opinion of his Honor. There is no reversible error. • No Error.