{ "id": 11465451, "name": "MILDRED PUTNAM, Plaintiff v. GREG FERGUSON, Trustee, J. R. DILLARD, Trustee, LESLIE D. FERGUSON, and wife, MARILYN M. FERGUSON, TRANSOUTH FINANCIAL CORPORATION, a South Carolina corporation, TRANSOUTH MORTGAGE CORPORATION, a South Carolina corporation, SUSAN C. LEWIS, Trustee, DEBORAH B. BRIGGS, personally and as Administratrix of the Estate of Franklin Allen Briggs, Jr., and JACLYN BRIGGS, a minor child, Defendants", "name_abbreviation": "Putnam v. Ferguson", "decision_date": "1998-07-07", "docket_number": "No. COA97-1235", "first_page": "95", "last_page": "100", "citations": [ { "type": "official", "cite": "130 N.C. App. 95" } ], "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": "118 S.E. 903", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "186 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652782 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/186/0075-01" ] }, { "cite": "431 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "550" }, { "page": "550" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 773", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526449 ], "year": 1993, "pin_cites": [ { "page": "775" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0773-01" ] }, { "cite": "73 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "236 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627044 ], "year": 1952, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0589-01" ] }, { "cite": "105 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1958, "pin_cites": [ { "parenthetical": "quoting Bradham v. Robinson, 236 N.C. 589, 594, 73 S.E.2d 555, 558 (1952)" }, { "page": "64" }, { "page": "64" } ], "opinion_index": 0 }, { "cite": "248 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625697 ], "weight": 3, "year": 1958, "pin_cites": [ { "parenthetical": "quoting Bradham v. Robinson, 236 N.C. 589, 594, 73 S.E.2d 555, 558 (1952)" }, { "page": "693" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0691-01" ] }, { "cite": "53 S.E. 669", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1906, "pin_cites": [ { "page": "671" } ], "opinion_index": 1 }, { "cite": "124 Ga. 876", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 8866341 ], "year": 1906, "pin_cites": [ { "page": "882" } ], "opinion_index": 1, "case_paths": [ "/ga/124/0876-01" ] }, { "cite": "431 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "550", "parenthetical": "citations omitted" }, { "page": "550" } ], "opinion_index": 1 }, { "cite": "110 N.C. App. 773", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526449 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "775", "parenthetical": "citations omitted" }, { "page": "775" } ], "opinion_index": 1, "case_paths": [ "/nc-app/110/0773-01" ] } ], "analysis": { "cardinality": 515, "char_count": 12886, "ocr_confidence": 0.74, "pagerank": { "raw": 1.1573865026237632e-07, "percentile": 0.5832274391286905 }, "sha256": "88d1ca874c0a4403b2428d8636127895abba601ed7b1727425d9da11889adc5f", "simhash": "1:954bb408728f2cdc", "word_count": 2146 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HORTON concurs.", "Judge WALKER dissents with a separate opinion." ], "parties": [ "MILDRED PUTNAM, Plaintiff v. GREG FERGUSON, Trustee, J. R. DILLARD, Trustee, LESLIE D. FERGUSON, and wife, MARILYN M. FERGUSON, TRANSOUTH FINANCIAL CORPORATION, a South Carolina corporation, TRANSOUTH MORTGAGE CORPORATION, a South Carolina corporation, SUSAN C. LEWIS, Trustee, DEBORAH B. BRIGGS, personally and as Administratrix of the Estate of Franklin Allen Briggs, Jr., and JACLYN BRIGGS, a minor child, Defendants" ], "opinions": [ { "text": "EAGLES, Chief Judge.\nWe first consider whether the trial court erred in refusing to grant defendants\u2019 motion to dismiss and in granting plaintiffs motion for summary judgment. The defendants argue that the trial court erred in finding that the promissory note held by plaintiff was secured by a deed of trust which constituted a valid first lien against the property. Defendants argue that \u201c \u2018[a] mortgage which purports to secure the payment of a debt has no validity if the debt has no existence.\u2019 \u201d Walston v. Twiford, 248 N.C. 691, 105 S.E.2d 62 (1958) (quoting Bradham v. Robinson, 236 N.C. 589, 594, 73 S.E.2d 555, 558 (1952)) (citations omitted). Defendants further argue that \u201csince by definition a mortgage is a conveyance of property to secure the obligation of the mortgagor, it is necessary for the mortgage to identify the obligation secured.\u201d Walston, 248 N.C. at 693, 105 S.E.2d. at 64. Defendants state that according to the deed of trust, there should be a promissory note from Greg Ferguson, Trustee, to Mildred Putnam, dated 3 May 1990. However, the 3 May 1990 promissory note to plaintiff is signed by Leslie D. and Marilyn M. Ferguson. In this record, there is no promissory note signed by Greg Ferguson, Trustee, and therefore Greg Ferguson was not indebted to plaintiff as recited in the deed of trust. Defendants also contend that where the deed of trust incorrectly states that the grantor in the deed of trust owed the debt and there is no reference in the deed of trust to show it was security for a debt of another person, the obligation secured is not properly identified and the deed of trust is invalid. In re Foreclosure of Enderle, 110 N.C. App. 773, 775, 431 S.E.2d 549, 550 (1993). Accordingly, since there was no reference to the Leslie and Marilyn Ferguson note in the deed of trust and there is no evidence that Greg Ferguson as trustee was indebted to plaintiff, defendants argue that plaintiff cannot prevail in her claim that she has a valid lien and her complaint should have been dismissed.\nPlaintiff argues that a deed of trust should not be invalid as to third persons because of the uncertainty in the description of the debt intended to be secured, where the debt can be identified through extrinsic evidence. See Allen v. Stanback, 186 N.C. 75, 118 S.E. 903 (1923). Here, plaintiff argues that it is clear that the debt existed and Leslie Ferguson was the beneficiary of the deed conveyed to Greg Ferguson, Trustee. Accordingly, plaintiff argues that she did have an enforceable deed of trust and a valid lien.\nIn Enderle, this court stated that \u201c[s]imply put, because the deed of trust did not properly \u2018identify the obligation secured,\u2019 it is invalid.\u201d Id. at 775, 431 S.E.2d at 550 (quoting Walston, 248 N.C. at 693, 105 S.E.2d at 64). Here, the deed of trust identifies Greg Ferguson as the debtor, while the promissory note is from Leslie and Marilyn Ferguson. As in Enderle, the deed of trust \u201cdid not properly \u2018identify the obligation secured.\u2019 \u201d Id. Accordingly, the deed of trust is invalid. Since the deed of trust is invalid, plaintiff does not have a valid lien. Accordingly, we hold that the grant of partial summary judgment is reversed and the action is remanded for entry of dismissal pursuant to Rule 12(b)(6) in favor of defendants.\nReversed and remanded.\nJudge HORTON concurs.\nJudge WALKER dissents with a separate opinion.", "type": "majority", "author": "EAGLES, Chief Judge." }, { "text": "Judge Walker\ndissenting.\nI respectfully dissent from the majority\u2019s conclusion that the deed of trust dated 3 May 1990, which secured a debt evidenced by a promissory note of that same date, was invalid.\nThe record in this case sets forth the following sequence of events: On 3 May 1990, a general warranty deed was executed in which Mildred Putnam (Putnam) conveyed real property in Waynesville, North Carolina to Greg Ferguson (Attorney Ferguson), an attorney and the nephew of Leslie D. and Marilyn M. Ferguson (the Fergusons). Also on 3 May 1990, a deed of trust was executed by Attorney Ferguson on the same property described in the deed, seeming a debt of $30,000.00 \u201cas evidenced by a Promissory Note of even date herewith the terms of which are incorporated herein by reference.\u201d Further, on that same date, the Fergusons executed a promissory note to Putnam for $30,000.00, which was given \u201cas seller-provided purchase money for real estate [in Waynesville, North Carolina] and [was] secured by a Deed of Trust which is a first lien upon the property therein described.\u201d\nAs the majority points out, it is clear that a \u201cmortgage to secure the debt of a third person, the mortgagor being subject to no obligation, is ... valid.\u201d In re Foreclosure of Enderle, 110 N.C. App. 773, 775, 431 S.E.2d 549, 550 (1993) (citations omitted); see also 54A Am. Jur. 2d Mortgages \u00a7 74 (1996). However, the majority concludes that \u201cbecause the deed of trust did not properly \u2018identify the obligation secured,\u2019 it is invalid.\u201d Id. I disagree.\nIn some jurisdictions, the rule applied states that \u201cthe true state or nature of an indebtedness secured by a mortgage need not be disclosed thereby, . . . [and] the validity of a mortgage does not depend on the description or form of the debt, but rather on the existence of the debt that it is given to secure.\u201d 54A Am. Jur. 2d Mortgages \u00a7 79 (1996). Further, as between the parties, \u201cno exact degree of accuracy is required in the description of the debt secured by a mortgage, since it is sufficient if the debt secured is capable of identification and the amount thereof is ascertainable.\u201d Id. at \u00a7 80. Finally, it has been stated that:\nParol evidence is admissible to identify the note intended to be secured by a mortgage or deed of trust. It is well settled that where a note agrees in some respects with that described in the mortgage, although it differs in others, it may be proved by parol to be the note intended to be described in the mortgage.\nId. at \u00a7 86; see also Garmany v. Lawton, 124 Ga. 876, 882, 53 S.E. 669, 671 (1906).\nIn this case, when the Fergusons applied for a loan from TranSouth Mortgage Corporation (TranSouth), TranSouth obtained a subordination agreement from Putnam, in which Putnam agreed to subordinate her prior deed of trust to that of TranSouth. The express language of the subordination agreement states that \u201c[whereas, Putnam] has previously loaned to [the Fergusons] the sum of [$30,000.00] evidenced by a Promissory Note dated May 3, 1990, which note is secured by the real property described in a Deed of Trust dated May 3, 1990, and recorded in the Haywood County Register of Deeds Office in Deed of Trust Book 332 at Page 45 . . . Further, in this action, neither Attorney Ferguson nor the Fergusons have answered or otherwise responded to plaintiffs complaint and thus have not contested the validity of the deed of trust. Rather, the only party now contesting the validity of that document is TranSouth, who was not a party to the original transaction, and whose interest is contrary to that of Putnam.\nThe majority relies upon In re Foreclosure of Enderle, supra, as support for the proposition that a deed of trust which is executed as security for the obligation of a third-party must \u201cproperly identify the obligation secured\u201d in order for it to be valid. In re Foreclosure of Enderle, 110 N.C. App. at 775, 431 S.E.2d at 550. However, it is clear here that the intention of the parties was for Putnam to convey title to the real property to the Fergusons, through their trustee, in exchange for a promissory note in the amount of $30,000.00 and that the promissory note was to be secured by a deed of trust from the Ferguson\u2019s nephew, Attorney Ferguson. I believe these facts, taken together, sufficiently identify the debt secured by the deed of trust to be the debt of the Fergusons.\nTherefore, I conclude that the deed of trust executed by Attorney Ferguson on 3 May 1990 did \u201cproperly identify the obligation secured\u201d and I dissent from the majority\u2019s conclusion that it was invalid.", "type": "dissent", "author": "Judge Walker" } ], "attorneys": [ "Killian, Kersten & Patton, PA, by Roy H. Patton, Jr., for plaintiff-appellee.", "Leonard & Riggers, by William T. Biggers, for defendant-appellants." ], "corrections": "", "head_matter": "MILDRED PUTNAM, Plaintiff v. GREG FERGUSON, Trustee, J. R. DILLARD, Trustee, LESLIE D. FERGUSON, and wife, MARILYN M. FERGUSON, TRANSOUTH FINANCIAL CORPORATION, a South Carolina corporation, TRANSOUTH MORTGAGE CORPORATION, a South Carolina corporation, SUSAN C. LEWIS, Trustee, DEBORAH B. BRIGGS, personally and as Administratrix of the Estate of Franklin Allen Briggs, Jr., and JACLYN BRIGGS, a minor child, Defendants\nNo. COA97-1235\n(Filed 7 July 1998)\nMortgages\u2014 deed of trust \u2014 identity of obligation secured\nThe trial court erred by granting partial summary judgment for plaintiff in a declaratory judgment action to determine the priority of the lien of a deed of trust where the deed of trust identified Greg Ferguson as the debtor, while a promissory note was from Leslie and Marilyn Ferguson. The deed of trust did not properly identify the obligation secured, is invalid, and plaintiff does not have a valid lien.\nJudge Walker dissenting.\nAppeal by defendants TranSouth Financial Corporation, TranSouth Mortgage Corporation, Susan C. Lewis, Deborah B. Briggs, and Jaclyn Briggs, from order entered 30 July 1997 by Judge Robert P. Johnston in Haywood County Superior Court. Heard in the Court of Appeals 12 May 1998.\nThis is a declaratory judgment action in which the plaintiff, Mildred Putnam, asked the trial court to determine the priority of the lien of a deed of trust held by plaintiff.\nOn 3 May 1990, plaintiff conveyed by general warranty deed a parcel of land having an address of Suite 5, 1114 Balsam Rd., Waynesville, North Carolina, 28786 to defendant Greg Ferguson, Trustee. Contemporaneously with the delivery of the general warranty deed, Greg Ferguson, Trustee, signed a deed of trust as grantor stating that the \u201cGrantor [Greg Ferguson, Trustee] is indebted to the Beneficiary [Mildred Putnam] in the principal sum of thirty-thousand and no/100 Dollars ($30,000.00) as evidenced by a Promissory Note of even date herewith the terms of which are incorporated herein by reference.\u201d Also dated 3 May 1990, Leslie D. Ferguson and Marilyn M. Ferguson executed a promissory note to Mildred Putnam in the amount of $30,000.00. The note indicated it was given \u201cas seller-provided purchase money for real estate, and is secured by a Deed of Trust which is a first lien upon the property therein described.\u201d\nBy general warranty deed dated 31 May 1991 and recorded 24 July 1991, Greg Ferguson, Trustee, conveyed the same real property to Leslie D. Ferguson and wife, Marilyn M. Ferguson. On the same day, a subordination agreement dated 2 July 1991 and signed by J.R. Dillard, Trustee, and Mildred Putnam, creditor, was also recorded. The subordination agreement recited that the debtors desired to borrow from TranSouth Financial Corp., but that the debtors could only obtain the loan upon the condition that the 3 May 1990 deed of trust be subordinated to the TranSouth deed of trust. Also recorded on the same day was a deed of trust dated 22 July 1991, from Lelie D. Ferguson and wife, Marilyn M. Ferguson, to Susan C. Lewis, Trustee, for TranSouth Mortgage Corp. securing $24,476.82.\nLeslie D. Ferguson and Marilyn D. Ferguson defaulted on both the TranSouth note and on their obligation to pay plaintiff. TranSouth instituted foreclosure, and plaintiff received notice of the pending foreclosure sale. Plaintiff made no appearance in the foreclosure proceeding.\nOn 25 February 1993, Susan C. Lewis, Trustee, conveyed the property by trustee\u2019s deed to TranSouth Mortgage Corp. for $29,167.13. On 23 August 1993, TranSouth conveyed the property by special warranty deed to Franklin Allen Briggs, Jr.\nPlaintiff filed a complaint on 23 April 1994. However, Franklin Allen Briggs, Jr., a defendant in the suit, died before the action was filed. Plaintiff filed a voluntary dismissal and re-instituted the lawsuit on 25 September 1995 substituting Deborah B. Briggs personally and as Administratrix of the Estate of Franklin Allen Briggs, Jr., and Briggs, Jr.\u2019s minor daughter.\nOn 31 October 1995, defendants moved to dismiss pursuant to Rule 12(b)(6). On 19 February 1996, plaintiff moved for partial summary judgment on the grounds that there was no issue as to any material fact relating to the validity of the note and deed of trust and that the subordination agreement between plaintiff and defendant TranSouth was invalid.\nOn 30 July 1997 the trial court denied defendants\u2019 motion to dismiss and granted plaintiff partial summary judgment. The trial court concluded that the debt evidenced by the note and deed of trust dated 3 May 1990 secured a valid first lien and that the subordination agreement was invalid. Defendants TranSouth Financial Corporation, TranSouth Mortgage Corporation, Susan C. Lewis, Deborah B. Briggs and Jaclyn Briggs, appeal.\nKillian, Kersten & Patton, PA, by Roy H. Patton, Jr., for plaintiff-appellee.\nLeonard & Riggers, by William T. Biggers, for defendant-appellants." }, "file_name": "0095-01", "first_page_order": 127, "last_page_order": 132 }