{ "id": 8555318, "name": "CHARLES B. NYE v. UNIVERSITY DEVELOPMENT COMPANY", "name_abbreviation": "Nye v. University Development Co.", "decision_date": "1971-03-31", "docket_number": "No. 7114SC214", "first_page": "676", "last_page": "680", "citations": [ { "type": "official", "cite": "10 N.C. App. 676" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "104 S.E. 137", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "180 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653117 ], "opinion_index": 0, "case_paths": [ "/nc/180/0117-01" ] }, { "cite": "196 S.E. 481", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627994 ], "opinion_index": 0, "case_paths": [ "/nc/213/0343-01" ] }, { "cite": "119 S.E. 210", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653228 ], "opinion_index": 0, "case_paths": [ "/nc/186/0191-01" ] }, { "cite": "163 S.E. 2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "2 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554842 ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0637-01" ] }, { "cite": "168 S.E. 2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "5 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551337 ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0501-01" ] }, { "cite": "83 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609216 ], "opinion_index": 0, "case_paths": [ "/nc/240/0680-01" ] }, { "cite": "87 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613977 ], "opinion_index": 0, "case_paths": [ "/nc/242/0294-01" ] }, { "cite": "113 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622539 ], "opinion_index": 0, "case_paths": [ "/nc/252/0412-01" ] }, { "cite": "139 S.E. 2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571759 ], "opinion_index": 0, "case_paths": [ "/nc/263/0533-01" ] }, { "cite": "174 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563418 ], "opinion_index": 0, "case_paths": [ "/nc/276/0714-01" ] } ], "analysis": { "cardinality": 462, "char_count": 9340, "ocr_confidence": 0.58, "pagerank": { "raw": 3.8708620459194845e-07, "percentile": 0.9004824219481522 }, "sha256": "df6e4b41807ed50779714e49088d9c4d5548de74550bbb57664b1a7d595fa70d", "simhash": "1:51fcba4e6a1c97e5", "word_count": 1600 }, "last_updated": "2023-07-14T19:51:53.441044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Morris concurs.", "Judge Vaughn concurs in the result." ], "parties": [ "CHARLES B. NYE v. UNIVERSITY DEVELOPMENT COMPANY" ], "opinions": [ { "text": "BROCK, Judge.\nWe are aware of the points argued by defendant in oral argument and in its brief. However, we have been considerably disturbed in undertaking to pass upon questions which defendant undertakes to present in this appeal by its assignments of error. We have probably spent more time on this case than is justified in trying to unravel and understand defendant\u2019s assignments of error. It is not the function of the appellate courts to search out possible errors which may be prejudicial to an appellant; it is an appellant\u2019s duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains.\nIt is the duty of an appellant to have exceptions properly noted to rulings of the trial court which an appellant deems error. In the case presently before us, defendant seems to have properly noted numerous exceptions throughout the pre-trial, trial, and post-trial proceedings. However, his duty did not end with the recording of his exceptions. Our Rule 19(c) provides : \u201cAll exceptions relied on shall be grouped and separately numbered . . . . \u201d This requirement for grouping of exceptions is designed to have all exceptions which present the same single question of law grouped together and assigned as error. Conversely, one asignment of error should have grouped under it all exceptions which present the same single question of law. It is the grouping of exceptions (whether one or more) presenting the same single question of law, which constitutes an assignment of error.\nAs noted above our rules require the \u201cgrouping of exceptions\u201d ; i.0., the assignments of error, but any single assignment of error must present a single question of law. Clearly, more than one exception may be grouped under a single assignment of error, but this may be done only when all the exceptions relate to but a single question of law.\nFor further discussion of the function of assignments of error, see, State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 634; State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736; Conrad v. Conrad, 252 N.C. 412, 113 S.E. 2d 912; State v. Atkins, 242 N.C. 294, 87 S.E. 2d 507; Dobias v. White, 240 N.C. 680, 83 S.E. 2d 785 (giving examples of proper and improper grouping of exceptions under one assignment of error) ; State v. Patton, 5 N.C. App. 501, 168 S.E. 2d 500; and State v. Conyers, 2 N.C. App. 637, 163 S.E. 2d 657.\nIn the case sub judice defendant has made the mistake which has so often been warned against; that of grouping under one assignment of error exceptions which present several questions of law. Where one assignment of error attempts to present more than one question of law it is broadside and ineffective. State v. Blackwell, supra.\nFor example, defendant, under assignment of error number one has grouped his exceptions numbers 1, 7, 8, 11, 12 and 13. Exception #1 was entered to the order overruling defendant\u2019s demurrer to the complaint. Exception #7 was entered to the order denying defendant\u2019s motion for nonsuit at close of plaintiff\u2019s evidence. Exception #8 was entered to the order denying defendant\u2019s motion for nonsuit at close of all the evidence. Exception #11 was entered to finding of fact number 6 in the judgment. Exception #12 was entered to the first conclusion of law in the judgment. And exception #13 was entered to the signing of the judgment. Exceptions 7 and 8 are the only two of the six exceptions which could properly be grouped together.\nWe do not wish to labor too long over the impropriety of the defendant\u2019s grouping of exceptions (assignments of error), but feel it might be beneficial to give one additional example. Under assignment of error number two defendant has grouped exceptions numbers 2, 3, 5, 11 and 12. Exceptions 2, 3 and 5 were entered to orders overruling defendant\u2019s objections to testimony of witnesses, but here the similarity ends. Each of the three exceptions ( 2, 3 and 5) have for their basis different rules of law and evidence, and the mere fact that they all relate to testimony does not mean that they present a single question of law. Exception #11 was entered to finding of fact number 6 in the judgment. Exception #12 was entered to the first conclusion of law in the judgment. It seems clear that these exceptions do not present a single question of law.\nWe have been able to glean from defendant\u2019s exceptions that it is its contention that the statute of frauds, G.S. 22-2, prevents the enforcement of an oral promise to release property from the lien of a deed of trust, and that the recordation statute, G.S. 47-18, requires the recordation of such a release for it to be effective. It seems that this question has been conclusively answered against defendant\u2019s contention. It was held in Stevens v. Turlington, 186 N.C. 191, 119 S.E. 210, that an unexecuted verbal agreement, made by a mortgagee for a valuable consideration, to release a real estate mortgage does not come within the statute of frauds. And, it logically follows, if such an agreement is not required to be in writing to be enforceable as betw\u00e9en the parties, certainly it is not required to be recorded.\nAlso we have gleaned from defendant\u2019s exceptions that it is its contention that the trial judge applied an improper measure of damages. Specifically defendant contends that, if plaintiff is entitled to recover damages, the damages must be measured by the consideration paid by plaintiff for the lot ($1400.00), and not its fair market value on the date of the foreclosure sale. The question of the measure of damages for wrongful foreclosure has also been decided adversely to defendant\u2019s contention. The plaintiff had the option, which he exercised, to. sue. the cestui to recover the true worth of the property. Smith v. Land Bank, 213 N.C. 343, 196 S.E. 481; Burnett v. Supply Co., 180 N.C. 117, 104 S.E. 137; 5 Strong, N.C. Index 2d, Mortgages and Deeds of Trust, \u00a7 37, p. 593.\nNo error.\nJudge Morris concurs.\nJudge Vaughn concurs in the result.", "type": "majority", "author": "BROCK, Judge." } ], "attorneys": [ "Arthur Vann for the plaintiff.", "Robinson O. Everett for the defendant." ], "corrections": "", "head_matter": "CHARLES B. NYE v. UNIVERSITY DEVELOPMENT COMPANY\nNo. 7114SC214\n(Filed 31 March 1971)\n1. Appeal and Error \u00a7 24-r- duty of appellant \u2014 preparation of case on appeal\nIt is not the function of the appellate court to search out possible errors which may be prejudicial to an appellant; it is the appellant\u2019s duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains.\n2. Appeal and Error \u00a7 24\u2014 grouping of exceptions\nAll exceptions which present the same single question of law must be grouped together and assigned as error. Court of Appeals Rule of Practice No. 19(c).\n3. Appeal and Error \u00a7 24\u2014 assignment of error \u2014 single question of law\nAn assignment of error must present a single question of law; where the assignment attempts to present more than one question of law, it is broadside and ineffective.\n4. Frauds, Statute of \u00a7 6\u2014 oral promise to release property from deed of trust\nAn oral promise to release property from the lien of a deed of trust is enforceable. G.S. 22-2.\n5. Registration \u00a7 1; Mortgages and Deeds of Trust \u00a7\u00a7 9, 11\u2014 agreement to release property from deed of trust \u2014 recordation\nAn agreement to release property from the lien of a deed of trust does not have to be recorded. G.S. 47-18.\n6. Mortgages and Deeds of Trust \u00a7 37\u2014 wrongful foreclosure \u2014 measure of damages\nTo recover damages for the wrongful foreclosure of a deed of trust, the plaintiff may elect to sue the cestui for the true worth of the property.\nJudge Vaughn concurs in the result.\nAppeal by defendant from McKinnon, Judge of Superior Court, 19 October 1970 Session, DURHAM Superior Court.\nPlaintiff instituted this action to recover damages for wrongful foreclosure of a deed of trust and sale of plaintiff\u2019s lot.\nPertinent facts, which are not in dispute, may be summarized as follows1: Defendant conveyed to one Realty Company a group of lots, including lot No. 61, Section A, Tract 1. Realty Company executed to defendant its note, secured by a deed of trust on the lots conveyed, for the purchase price. The deed of trust contained an agreement that defendant would release from the lien of the deed of trust one lot for each $1,400.00 paid to defendant by Realty Company. Plaintiff negotiated a purchase of said lot No. 61 from Realty Company, and Realty Company paid defendant $1,400.00 for release of said lot No. 61. A deed was executed by Realty Company to plaintiff, but no deed of release has been shown to have been executed by defendant to Realty Company. Realty Company defaulted on its note and defendant caused a sale of the lots, including said lot No. 61, to be conducted by the trustee. Defendant was high bidder at the sale and later conveyed the lots, including said lot No. 61, to a third party.\nPlaintiff offered evidence which tended to show that defendant accepted the $1,400.00 payment for the specific purpose of releasing lot No. 61; and that defendant\u2019s agent told plaintiff that the lot would be released upon receipt of the $1,400.00.\nBy stipulation the case was tried before Judge McKinnon sitting without a jury. Judgment was rendered allowing plaintiff to recover from defendant the sum of $4,250.00, based upon the fair market value of the lot on the date of the foreclosure sale. Defendant appealed.\nArthur Vann for the plaintiff.\nRobinson O. Everett for the defendant." }, "file_name": "0676-01", "first_page_order": 700, "last_page_order": 704 }