Opinion
September Term, 1890.
Action to Recover Land — Deeds — Subscribing Witness — Mortgage — Clerk's Certificate — Probate — Transactions with Deceased Persons — Evidence — Powers of Sale — Legal Title.
1. Where the surname of a subscribing witness to a deed was omitted in the clerk's certificate of proof by such witness, such deed will not be rejected in evidence when the fact of the execution and probate are not disputed.
2. A plaintiff, in an action to recover land, who claims under a deceased mortgagor, is not competent to prove, in his own interest, payments on the mortgage note made by such mortgagor.
3. In evidence of her chain of title, the feme plaintiff introduced a mortgage given to indemnify the mortgagors under whom she claimed against loss by reason of their suretyship to the mortgagee in a sum of money due by note which they had endorsed. She offered to show further by her co-plaintiff, to whom the note was endorsed payable, and in their own interest, that $50 was paid on the note before judgment: Held, the maker of the note and the mortgagor being dead, such testimony should be excluded, under section 590 of The Code, as being a transaction with deceased persons.
4. Where it appeared from the testimony that the land in dispute was bid off at the sale under mortgage at a small price (which was not shown to have been paid), pursuant to a previous agreement between the trustees conducting the sale and the bidder, who, at the instance of one of the trustees, transferred his bid to the vendee: Held, no title passed by such sale, because the land conveyed was held as security for debt.
5. Where the mortgagee has no power of sale granted to him, a sale made by him is not effectual to pass the legal title to the mortgagor.
6. A plaintiff, under a vendee under such sale, must bring an action to foreclose, and cannot recover possession of the land in an action simply for that purpose.
7. The conveyances by the mortgagees and their vendee do not pass a naked legal title, and such conveyances cannot operate as a foreclosure.
8. Where, in an action to recover land, the defendants show adverse possession under color of title for seven years, under known and visible lines and boundaries, continuous and successive, and next preceding the institution of this action, the plaintiffs cannot recover.
ACTION to recover land, tried before MacRae, J., at Fall Term, (553) 1887, of UNION.
W. P. Bynum and P. D. Walker for plaintiffs.
Covington Adams (by brief) and E. C. Smith for defendants.
The plaintiffs claim title derived from Isaac Simpson, by virtue of a mortgage deed executed by him to W. T. Lemond and w. L. Simpson on 12 September, 1859, and through mesne conveyances to the feme plaintiff.
The defendants claim title as heirs at law of Isaac Simpson, and allege the payment of the debt secured by the mortgage deed and a reconveyance. They also rely upon the lapse of time and the statute of limitations. They also deny the validity of the deeds under which plaintiffs claim, and insist that they (defendants) have title to the land, and if not, they are entitled to have it sold under the mortgage to pay any sum that may be due on the debt secured thereby, and have the balance paid over to them, etc.
The first exception is to the sufficiency of the probate of the mortgage deed from Isaac L. Simpson. the name of the subscribing witness, as appears attached to the deed, was "Ivey L. Potter Simpson," and the certificate is that it was "proved before me by Ivey L. Potter, a subscribing witness thereto," etc. Assuming that the clerk, by mistake, or from any other cause, omitted the surname, the factum of the execution of the mortgage, or of its probate and registration, is not denied, and the objection was properly overruled. Love v. Harbin, 87 N.C. 249.
The second exception is to the competency of the plaintiff Robert Simpson to testify that "$50 were paid upon the said note before judgment. Nothing was paid afterwards," etc.
The mortgagor and maker of the note was dead, and we do not think that the plaintiff was a competent witness to prove, for any purpose necessary to support his action, that a payment had been made, or that none was made. They necessarily concerned "transactions" with the deceased about which he could testify, and might testify differently, if living, and we think he was rendered incompetent as a witness (560) for any such purpose, both by section 580 and section 590 of The Code.
It was in evidence (the plaintiff Robert Simpson himself testified) that a sale of the land in dispute was made to W. L. Simpson, one of the mortgagees, and J. Q. Lemond, executor of the other, and that at the sale the land was bid off by S. H. Walkup for said William L. Simpson; that he did not know why Walkup did not take the deed to himself. It was further in evidence that W. L. Simpson and J. Q. Lemond, executors, etc., executed on 6 June, 1870, a deed to W. C. Ogburn; that Ogburn was not at the sale, and did not bid off the land, nor authorize any one else to bid it off for him; that W. L. Simpson, one of the mortgagees, asked him to let the deed be made to him; it was so made, and he, on 11 February, 1878, more than seven years afterwards, conveyed it to the feme plaintiff, and that nothing was paid. The mortgagees, for whose indemnity the deed was made, had no power under the deed to sell or foreclose the mortgage by sale, public or private, and if they had, the evidence tends strongly to show mala fides in the sale; that there was, in fact, no bona fide sale to Walkup or Ogburn, who acted for and at the request of the mortgagee, Simpson. There appears to have been no consideration for the deed from the mortgagees to Ogburn, or from him to the feme plaintiff, and the evidence is sufficient to create much more than a mere suspicion of collusion between the mortgagees and plaintiffs, and the defendant was entitled, substantially, to the first instruction asked. we say "substantially," because there is no direct evidence that Walkup transferred his bid to Ogburn at the instance of Simpson, though there is no evidence of any bid except by Walkup.
If the mortgagees had power under the mortgage to sell, the effect of their deed of 6 June, 1870, if made fairly and without collusion, would be to foreclose the mortgage and the relation of mortgagor and mortgagee ceased, but if they had no authority to sell, and we think they had none, the legal title remained in them, and the land (561) could only be subjected, whether as a security for the payment of the debt to the male plaintiff, or in exoneration of the sureties thereto, by an action to foreclose the mortgage, and the feme plaintiff cannot recover possession of the land in this action.
But it is insisted that the deeds from the mortgagees to Ogburn, and from Ogburn to the feme plaintiff, if not valid to pass the title to her, conveyed at least the naked legal title, and, as the land is security for the payment of the male plaintiff's debt, this may be treated as an action for foreclosure to pay it.
Assuming that the mortgagors could have transferred to the male plaintiff the legal title held by them in exoneration of their liability, and that this would have put the naked legal title in him, and that, having the equity to have the land applied to the payment of his debt, he might bring an action in his own name, without joining the mortgagees against the mortgagor to foreclose (we do not say that this could be done), yet that certainly could not be done in this action.
There is no legal title of any sort in the male plaintiff, and this action is not brought to foreclose. On the contrary, it is brought to recover the possession of the land only, and that, not upon any claim of title by the male plaintiff, but upon the claim of title of the feme plaintiff, and the only relief demanded is the possession of the land and damages for retention, and not to foreclose the mortgage for the payment of the male plaintiff's debt, or for the exoneration of the sureties thereto, who are not parties to this action; and, besides, the claim of the defendants set up in their answer that if not entitled to the land they are entitled to have it sold under the mortgage to pay any sum that may be due, etc., is denied by the replication. No such cause of action is alleged by the complainant, and there could be no such recovery as that to foreclose, etc., in this action. Willis v. Branch, 94 N.C. 142, and (562) cases there cited.
The judgment is both for recovery of possession by the feme plaintiff and that the defendants be declared mortgagees or trustees, etc., and that the land be sold. This is a judgment for both of the plaintiffs in double and conflicting aspects, and cannot be sustained.
We think there was, in several aspects of the case, evidence that should have been passed upon by the jury, under instructions from the court, and that there was error in refusing the first and fifth prayers for instruction, and the charge as given in the judgment rendered, and we need not consider whether if, in an action brought by the male plaintiff to subject the land as a security for the payment of his debt, the statute of presumptions would bar, and whether, in such an action, the mortgagees would be necessary parties, nor is it necessary to consider the other exceptions in the case on appeal.
Error.
Cited: McGowan v. Davenport, 134 N.C. 528.