Smitherman v. Morris Plan Bank of Greensboro

Supreme Court of North Carolina

Smitherman v. Morris Plan Bank of Greensboro

188 S.E. 645, 211 N.C. 65, 1936 N.C. LEXIS 406

DecidedDecember 16, 1936

StatusPublished

This text of 188 S.E. 645 (Smitherman v. Morris Plan Bank of Greensboro) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smitherman v. Morris Plan Bank of Greensboro, 188 S.E. 645, 211 N.C. 65, 1936 N.C. LEXIS 406 (N.C. 1936).

Pincite

Opinion

DeviN, J.

Tbe plaintiff’s appeal from tbe judgment of nonsuit presents tbe question wbetber tbe plaintiff’s evidence, taken in its most favorable light for him, is sufficient to entitle him to bave it submitted to tbe jury.

*66 From tbe record before us, it appears that the plaintiff offered evidence tending to show that he borrowed from the defendant bank, in 1930, $2,000; that on 1 October, 1932, the amount had been reduced to $980.00; that thereafter he' paid $100.00 at one time and $15.00 every two weeks until 5 April, 1933, when at the instance of defendant bank he turned over the rents on his property to be applied on the note; that the rents were thereafter collected each week by defendants; that in February, 1935, he was informed that the property had been sold in foreclosure under the deed of trust; that he had had no notice of foreclosure; that if he had, he would have arranged it; that ten dollars per week was collected from the rents.

Conceding that pursuant to the foreclosure sale the title to the property has passed to an innocent purchaser for value, it is apparent that the evidence of the plaintiff was sufficient to have entitled him to have it submitted to the jury under appropriate instructions, at least on the question of accounting with defendant bank and its successor, the defendant Commissioner of Banks, and there was error in entering judgment of nonsuit.

The judgment of nonsuit must be

Reversed.

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DeviN, J.

Tbe plaintiff’s appeal from tbe judgment of nonsuit presents tbe question wbetber tbe plaintiff’s evidence, taken in its most favorable light for him, is sufficient to entitle him to bave it submitted to tbe jury.

*66 From tbe record before us, it appears that the plaintiff offered evidence tending to show that he borrowed from the defendant bank, in 1930, $2,000; that on 1 October, 1932, the amount had been reduced to $980.00; that thereafter he' paid $100.00 at one time and $15.00 every two weeks until 5 April, 1933, when at the instance of defendant bank he turned over the rents on his property to be applied on the note; that the rents were thereafter collected each week by defendants; that in February, 1935, he was informed that the property had been sold in foreclosure under the deed of trust; that he had had no notice of foreclosure; that if he had, he would have arranged it; that ten dollars per week was collected from the rents.

Conceding that pursuant to the foreclosure sale the title to the property has passed to an innocent purchaser for value, it is apparent that the evidence of the plaintiff was sufficient to have entitled him to have it submitted to the jury under appropriate instructions, at least on the question of accounting with defendant bank and its successor, the defendant Commissioner of Banks, and there was error in entering judgment of nonsuit.

The judgment of nonsuit must be

Reversed.

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Bluebook (online)

188 S.E. 645, 211 N.C. 65, 1936 N.C. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smitherman-v-morris-plan-bank-of-greensboro-nc-1936.