Wallace v. . Wallace

188 S.E. 96, 210 N.C. 656, 1936 N.C. LEXIS 189

• Court: Supreme Court of North Carolina
• Decided: November 4, 1936
• Status: Published

Opinion

Stacy, C. J.

The jury found against the defendant Broadway upon his plea of payment. .He announced in open court that he was not attacking the validity of plaintiff’s lien. Nevertheless, the court held as a matter of law that plaintiff’s mortgage was void, for want of proper parties, under authority of Gorham v. Meacham, 63 Vt., 231, 22 Atl., 572, 13 L. R. A., 676. The conclusion is a non sequitur. Small v. Small, 74 N. C., 16; Younce v. McBride, 68 N. C., 532.

In the first place, the validity of plaintiff’s mortgage is not assailed on the present record; and in the next place, the authority cited has reference to a mortgage executed by one to himself as “executor,” not as “guardian.” the rule is, that where a guardian takes a deed or mortgage for bis ward, the title is regarded as being in the ward, rather than in the guardian, Small v. Small, supra, 12 R. C. L., 1123, 28 C. J., 1155, while a different rule may prevail as to an executor or administrator. 11 R. C. L., 152, et seq. But, however this may be, the validity of plaintiff’s mortgage is not challenged by the defendant. He specifically refused to do so on the trial, and we think be should be held to bis plea and admission, or election, thus deliberately made. Reed v. Reed, 93 N. C., 462.

New trial.