Joines v. Johnson

WaleeR, J. This action was brought to recover the amount of a note and to foreclose a mortgage given to secure its payment. The plaintiff alleged in his complaint that on August 30, 1894, the defendants made and delivered to- him a note under seal for the sum of $100 due August 1, 1896, and to secure its payment they executed a mortgage upon the land therein described, and that no part of the note has been paid; he therefore demands judgment for the amount of the note and for the foreclosure of the mortgage. The defendants in their answer deny the execution of the note, but admit the execution of the mortgage and aver that it was given upon the condition that the plaintiff should make them a deed for one of the tracts of land described in the mortgage, which contains twenty acres. The plaintiff refused to- make the deed, and upon demand refused also to return the mortgage. The plaintiff introduced evidence which tended to- show that the defendants executed the note and mortgage and that no part of the note had been paid. That on or about August 30, 1894, plaintiff contracted to sell and did sell and convey a tract of land to one E. L. Billings, and as part payment of the purchase money he agreed to accept and the defendants agreed to give their note, secured by the mortgage, in the sum of $100, Billings having agreed for that amount to sell to the defendants a tract of land the title to which was then in Billings, and that plaintiff, who was a justice of the peace, wrote on the back of the deed to Billings the following transfer: — 489 — “For value received of Hardin Johnson, I convey to him all the right and title vested in me by virtue of the within deed. August 1, 1894. Ei. L. Billings (Seal). T. J. Billings (Seal).” The plaintiff, as a justice of the peace, then took the acknowledgment of Billings and his wife and the privy examination of Mrs. Billings. There was no agreement that plaintiff should make the defendants a deed or that he should see that Billings made the deed to them for the land. The deed, with the endorsement thereon, was delivered to the defendant in the plaintiff’s presence, the parties believing at the time that the written transfer was sufficient to pass the title to the defendants. Billings has never paid to the plaintiff anything for the land. When the plaintiff proposed to introduce the deed to Billings and the endorsement thereon written by himself, together with the acknowledgment and privy examination, the defendant objected, and the objection being overruled and the papers admitted, the defendant excepted on the following grounds: “1. That said endorsement was not a deed and could not be held a sufficient consideration for the execution of the note and mortgage. 2. That the adcnowledgment and privy examination were invalid because the plaintiff was interested in the transaction.” The defendants introduced evidence tending to' show that they did not execute the note, but that they did execute the mortgage, and that in consideration thereof Billings agreed to execute and the plaintiff agreed to see that Billings did execute to the defendant Hardin Johnson a good and sufficient deed with covenant of warranty for the land that the defendants had bought from Billings, which contained twenty acres, and that neither the plaintiff nor Billings had complied with the agreement. The defendant’s witness, E. L. Billings, testified that he — 490 — bad agreed to make to the defendants a deed for the twenty-acre tract, and thought that he had done so by the delivery of the deed from the plaintiff to him and the written transfer and probate which are on the back of the deed; that if it i& not a good deed he is still willing to make one that will be valid and sufficient to transfer the title to the defendant. By consent of the parties issues were submitted to the jury by the Court, which, with the answers thereto, are as follows: 1. D'id the defendant execute to the plaintiff the note sued on in this action? Yes. 2. If the defendant executed said note, in what amount is he indebted to the plaintiff ? One hundred and three dollars and sixty-one cents, without interest. The Court charged the jury that if they found by the greater weight of evidence that the plaintiff agreed to convey the land to tire defendants, or that he would see that Billings conveyed it, and that the defendants received a good title to the same, they should answer the second issue “Nothing”; that the endorsement on the deed, with the acknowledgment and privy examination, did not constitute a conveyance, but was only such a contract or covenant as could be enforced by the defendants against Billings and his wife; and further, that if they found from the evidence the contract was as claimed by the defendants, then the endorsement was not a compliance with the contract as made between the parties. It appears in the case that “the defendant excepted to the ioref going charge,” without stating the particular grounds of the exception. The defendants requested the Court to charge the jury as follows: 1. That unless plaintiff complied with his contract, if any, made contemporaneous with the execution of the mortgage, he could not recover in this suit. — 491 — 2. That tbe transfer on tbe back of tbe deed from Billings does not pass a good and valid title to tbe defendant Johnson. 3. That if Joines did not complete bis contract with tbe defendant Johnson on tbe day of tbe trade, and by reason of this tbe defendant demanded a rescisión of tbe contract, then tbe plaintiff is not entitled to recover. 4. That if the plaintiff failed to complete tbe trade agreed upon when the defendant was in position to comply with bis part of the trade, be cannot compel the defendant to comply with said contract when tbe defendant is not now in a financial condition to do so, if said condition was caused by tbe plaintiff’s wrong or neglect. Tbe Court gave the instruction asked in defendant’s second prayer, and refused to give those contained in tbe third and fourth prayers. In reference to tbe first prayer it is stated in tbe case “that tbe Court did not give paragraph 1 of tbe defendant’s prayers in the words used, but tried to state, and thinks it did state, in the charge as heretofore given tbe contention which is presented in said prayer.” Tbe defendants excepted to tbe refusal of tbe Court to give tbe instructions as contained in prayers 1, 3 and 4. Judgment was entered on the verdict, and the defendants appealed. Tbe exception to the charge is rather too general to be considered by this Court. Tbe charge embraces more than one proposition, and one at least was favorable to tbe defendants. The exception should have specified the ground of objection. McKinnon v. Morrison, 104 N. C., 354. But, waiving tbe generality of tbe exception, we think tbe charge was in itself correct and was sufficient to present tbe defendant’s contention. The execution of tbe note was denied by tbe defendant and the jury found tbe issue based upon that denial in favor of tbe plaintiff. Tbe only other matter of defense related to tbe transaction in regard to tbe deed from Billings. Tbe defendants testified that the plaintiff bad promised to see that — 492 — a good title was conveyed by Billing's, and tbe Court instructed tbe jury that if they found this to be true they should find against tbe plaintiff upon tbe second issue. If they bad so found it would have defeated tbe plaintiff’s right of recovery. We cannot therefore understand why tbe defendants should have objected to this instruction. The Court further told the jury that if tbe agreement was as stated by tbe defendant Johnson in bis testimony tbe delivery of tbe written transfer, which was endorsed on the deed and tbe acknowledgment and privy examination, would not be a compliance with it. Was not this all that tbe defendants could properly have asked or expected ? Tbe Court virtually charged the jury in accordance with tbe defendant’s claim as set forth in their answer and testimony, though the words of tbe answer were not used. If tbe defense was good tbe charge must be unobjectionable. We will now consider tbe instructions asked by tbe defendants : 1. Tbe instruction contained in tbe first prayer was substantially given and tbe answer of tbe jury in response thereto depended altogether upon what was tbe contract. Tbe Court charged that if the plaintiff bad made the contract as alleged by the defendants, there bad not been a compliance with it. This was a direct response to tbe prayer. If tbe contract was that Billings should make title to tbe defendant then tbe plaintiff was not responsible for bis failure to* do so-. When we examine tbe verdict in connection with tbe evidence and the charge of tbe Court, we must conclude that tbe jury found that tbe plaintiff bad not agreed to execute a deed for tbe land to the defendant or to see that a good and sufficient title was conveyed to them. 2. Tbe instruction in the second prayer was given. 3. The instruction in tbe third prayer was substantially given, when tbe charge is properly construed with reference — 493 — to the contention of the defendants and the evidence in the case. Besides, the jury found, as we have said, that the plaintiff did not contract as alleged by the defendants, so that no harm could have come to the defendants if the instruction had not been given. 4. There was no evidence to support some of the allegations of fact in the fourth prayer. What was said with regard to the third prayer is applicable to this one. The Court told the jury that if the plaintiff failed to comply with the contract, which they found to be as alleged by the defendants, the plaintiff could not recover, and they should answer the second issue “Nothing.” This was all the defendants co-uld reasonably ask under the circumstances. As the jury found necessarily that the contract was not made as defendants alleged and, therefore, that no obligation was imposed upon the plaintiff to mate a title to the defendant Hardin Johnson or to see that one was made, we cannot perceive how the endorsement on the deed could become material. The fact that the plaintiff had made a deed to Billings and that the defendants had agreed to execute a mortgage to the plaintiff could not disqualify the plaintiff in his character as justice of the peace to take the acknowledgment of the written transfer from, Billings to defendants. Suppose it did, how can it affect the question involved in this case, namely, whether the plaintiff had agreed to have title for the land made to the defendants ? If that was the contract it was a distinct transaction and had no such direct connection with the Billings transfer as to render the plaintiff incompetent as justice of the peace to take the probate. But in any view of the case we think he was qualified to act in the matter. The question, though, intended to be raised was dearly irrelevant to the controversy. Upon a full and careful review of the record, it appears to us that the case was properly tried. No error.