Crook v. Warren Ex Rel. Warren

192 S.E. 684, 212 N.C. 93, 1937 N.C. LEXIS 245

• Court: Supreme Court of North Carolina
• Decided: September 22, 1937
• Status: Published

Opinion

Pee Oueiam.

The defendant Warren’s cross action against the defendant International Harvester Company of America is bottomed upon the allegation that the Harvester Company transferred and assigned said note to the plaintiff several years after the maturity date of the note with the knowledge that the said indebtedness at the time of said transfer had been paid and satisfied in full.

Upon this feature of the case the record disclosed the following pertinent entry: “At the close of the plaintiff’s testimony all of the parties agreed that the first issue might be answered 'Yes,’ and the court so instructed- the jury and wrote in the .answer 'Yes’ for the jury.”

It is immaterial whether we consider this as a finding of fact by the jury or as an admission by the defendant Warren. In either event it is thereby determined that at the time of the transfer of said note to the plaintiff there was still a balance due and unpaid thereon. Otherwise the foreclosure deed of the trustee would have conveyed no title to the plaintiff.

The evidence tends to show, and the defendant Warren alleges in his answer: “That the note described in the pleadings was transferred and assigned by the defendant Harvester Company to the plaintiff herein long after the maturity date of the note.” When the land was sold by the trustee it was purchased by the then holder of the note, the plaintiff in this cause. Under these circumstances the plaintiff obtained only such title as the trustee was authorized to convey. Walker v. Mebane, 90 N. C., 259; Saleeby v. Brown, 190 N. C., 138. If the note was paid and satisfied in full, the trustee’s deed was null and void and conveyed no right, title, or interest to the plaintiff. An outstanding indebtedness was essential to support the trustee’s deed. An admission of valid title was an admission that the note was not fully satisfied. The Harvester Company, having transferred. and assigned said note to the plaintiff at a time when there was a balance still due and unpaid, has committed no wrong and the defendant Warren has failed to establish any right of action against it.

There was no error in the judgment of the court below, reversing the ruling of- the general county court on defendant Harvester Company’s motion to dismiss defendant Warren’s cross action as of nonsuit, nor in the judgment entered by the court below in accordance with its ruling.

The judgment below is

Affirmed.