{ "id": 8658058, "name": "PORTER v. WHITE", "name_abbreviation": "Porter v. White", "decision_date": "1901-03-12", "docket_number": "", "first_page": "42", "last_page": "45", "citations": [ { "type": "official", "cite": "128 N.C. 42" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "45 N. C., 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684306 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/45/0088-01" ] }, { "cite": "41 N. C., 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2102594 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/41/0038-01" ] }, { "cite": "65 N. C., 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955315 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/65/0520-01" ] }, { "cite": "105 N. C., 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652852 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/105/0394-01" ] }, { "cite": "36 N. C., 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2097063 ], "opinion_index": 0, "case_paths": [ "/nc/36/0369-01" ] }, { "cite": "36 N. C., 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2097016 ], "opinion_index": 0, "case_paths": [ "/nc/36/0221-01" ] }, { "cite": "45 N., C., 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689017 ], "opinion_index": 0, "case_paths": [ "/nc/45/0272-01" ] }, { "cite": "62 N. C., 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2091745 ], "opinion_index": 0, "case_paths": [ "/nc/62/0325-01" ] }, { "cite": "80 N. C., 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689529 ], "opinion_index": 0, "case_paths": [ "/nc/80/0224-01" ] }, { "cite": "90 N. C., 238", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "102 N. C., 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649602 ], "opinion_index": 0, "case_paths": [ "/nc/102/0278-01" ] }, { "cite": "104 N. C., 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650908 ], "opinion_index": 0, "case_paths": [ "/nc/104/0159-01" ] }, { "cite": "105 N. C., 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652499 ], "opinion_index": 0, "case_paths": [ "/nc/105/0191-01" ] }, { "cite": "107 N. C., 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273265 ], "opinion_index": 0, "case_paths": [ "/nc/107/0284-01" ] }, { "cite": "115 N. C., 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652326 ], "opinion_index": 0, "case_paths": [ "/nc/115/0530-01" ] }, { "cite": "41 N. C., 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2102673 ], "opinion_index": 0, "case_paths": [ "/nc/41/0283-01" ] }, { "cite": "10 N. C., 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277517 ], "opinion_index": 0, "case_paths": [ "/nc/10/0423-01" ] }, { "cite": "123 N. C., 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658139 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/123/0170-01" ] } ], "analysis": { "cardinality": 449, "char_count": 6598, "ocr_confidence": 0.478, "pagerank": { "raw": 1.990813113238542e-07, "percentile": 0.741750194702471 }, "sha256": "4f9ffeb0fd49606f934ef71a7a38424b46c9cb1fa7840b4a1d5a0c2f5b592574", "simhash": "1:8a7d2566b5c908de", "word_count": 1139 }, "last_updated": "2023-07-14T15:44:14.013877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PORTER v. WHITE." ], "opinions": [ { "text": "Glaek, J.\nTbe plaintiff introduced in evidence a deed,, dated 13tb May, 1878, absolute on its face, from bimself to-S. Cory, and tbe following paper-writing bearing same date from S. Cory to bimself, whose execution is admitted: \u201cTbis is to certify that A. T. Porter does not owe me only $178.78 and interest on same, and when it was paid tbe right of bis property is to be returned to bis heirs. May 13, 1878. S. Cory.\u201d\nTbe complaint alleges payment in full, asks for an accounting and tbe execution of a deed by defendants, beirs-at-law of Cory, back to plaintiff.\nIn tbe late case of Watkins v. Williams, 123 N. C., 170, in which tbe facts much resemble tbis, it is said: \u201cSince Streetor v. Jones, 10 N. C., 423, two principles have been established and uniformly followed, when bills are preferred to convert a deed absolute on its face into a mortgage or security for debt\u2014\n\u201c(1) It must appear that tbe clause of redemption was omitted through ignorance, mistake, fraud or undue advantage.\n\u201c(2) Tbe intention must be established, not by -simple declaration of the parties, but by proof of facts and circumstances dehors the deed inconsistent with tbe idea of an absolute purchase; otherwise tbe solemnity of deeds would always be exposed to Tbe slippery memory of witnesses.' Kelly v. Bryan, 41 N. C., 283.\n\u201cThe plaintiff makes no attempt to skelter himself under the first proposition, but he insists, and we think he has shown, that he is protected by the second proposition.\u201d\nThis covers the present controversy. The first proposition is settled beyond controversy. Sprague v. Bond, 115 N. C., 530; Egerton v. Jones, 107 N. C., 284: Green v. Sherrod, 105 N. C., 191; Norris v. McLamb, 104 N. C., 159; Egerton v. Jones, 102 N. C., 278; Link v. Link, 90 N. C., 238; Bonham v. Craig, 80 N. C., 224; Briant v. Corpening, 62 N. C., 325; Brown v. Carson, 45 N., C., 272; McDonald v. McLeod, 36 N. C., 221; and other cases.\nBut the plaintiff does not come within this class. Though he alleged in his complaint that the clause of defeasance was omitted \u201cthrough ignorance, mistake, fraud and undue advantage,\u201d he offered no evidence in proof of it, and in fact the written agreement of S. Cory set out by him negatived the allegation of inadvertence or fraudulent omission. The defendant received no detriment by an issue not being submitted on a matter as to which there was no proof, and his exception to the refusal of such issue can not be sustained.\nThe plaintiff\u2019s case rested on the second proposition, quoted above from Watkins v. Williams. The written agreement upon the evidence was a part of the same transaction with the deed of the same date, and taken in connection with the other evidence showing inadequacy of price (Howlett v. Thompson, 36 N. C., 369), subsequent payments, retention of possession by plaintiff (grantor in deed), and the admissions of grantee, justified the form of the issues submitted to the jury and their finding that the deed absolute on its face was in fact intended as a security for debt. Waters v. Crabtree, 105 N. C., 394; Robinson v. Willoughby, 65 N. C., 520; Blackwell v. Overby, 41 N. C., 38; McLaurin v. Wright, 37 N. C., at page 97.\nIt is immaterial thaj; tbe contract was in several instruments. Watkins v. Williams, supra; Robinson v. Willoughby, supra; Mason v. Hearne, 45 N. C., 88.\nTlie two prior mortgages were competent evidence to show the indebtedness. Robinson v. Willoughby, supra.\nThe Court is presumed to have charged that the proof must be \u201cclear and cogent and incompatible with the idea of a purchase, and should leave no fair doubt that a security was intended\u201d (Blackwell v. Overby, 41 N. C., 38; Kelly v. Brian, Ibid, 283), as no exception to the charge is sent up.\nIn such cases, time is not of the essence of the contract. Mason v. Hearne, 45 N. C., 88. Besides, the Statute of Limitations has no application, for the plaintiff has been in continuous uninterrupted possession since 1870.\nThe exception to the sons of the plaintiff, under The Code, section 590, as witnesses because they fall under the description \u201cheirs\u201d of'grantor \u2014 plaintiff\u2014is without force. The jury have found that the conveyance was in reality a security for debt. The witnesses are not \u201cheirs\u201d as long as their father (the plaintiff) lives, and may never have any interest in the land. They certainly have no disqualifying interest now.\nThe conveyance to Corey being registered as a deed, and not as a mortgage, a purchaser for value from the grantee would occupy a very different position from the defendant, Armetta Worthington, who is the devisee of S. Cory. Waters v. Crabtree, 105 N. C., 394.\nIt might be surmised that the transaction was intended to defraud the creditors of the plaintiff. In such case the Courts would help neither party, but even then the maxim potior est conditio possidentis would apply. However, there is no proof that the transaction was for a fraudulent purpose.\nThe judgment below is\nAffirmed.", "type": "majority", "author": "Glaek, J." } ], "attorneys": [ "Bhinner & Whedbee, for plaintiff.", "Jarvis & Blow, and Shepherd & Shepherd, for tbe defendant." ], "corrections": "", "head_matter": "PORTER v. WHITE.\n(Filed March 12, 1901.)\n1. DEEDS \u2014 Absolute on Face \u2014 Mortgages.\nEvidence in this case held sufficient to warrant a finding that a. deed absolute on its face was in fact a mortgage.\n2. ISSUES \u2014 Proof\u2014 Trial.\nRefusal of Court to submit an issue on which there is no proof, is not erroneous.\n3. DEEDS \u2014 Separate Instruments.\nIt is immaterial that a contract is contained in several instruments.\n4. INb i'RUCTIONS \u2014 Presumptions.\nWhere no exception to the charge is sent up, it is presumed to-be correct.\n5. CONTRACTS \u2014 Terms\u2014Essence.\nWhere suit is brought to have a deed absomte on its face declared a mortgage, the time for redemption is not of the-essence of the contract.\n6. LIMITATION OP ACTIONS \u2014 Possession.\nThe statute of limitations has no application to a party in possession who brings suit to have a deed absolute upon its. face ueclared a mortgage.\n7. WITNESSES \u2014 Competency\u2014The Code, Sec. 590.\nThe sons of a grantor, in a deed, which grantor is suing the-neirs of the grantee to have such deed declared a mortgage, are not incompetent witnesses under The Code, sec. 590, to-show transactions between the grantor and grantee.\n8. NOTICE \u2014 Deed\u2014Mortgage\u2014Devisee.\nA registered deed may be declared a mortgage, though the land, is held by the devisee of the grantee in the deed.\nActioN by A. T. Porter against C. A. White, executor,. et al.j of Samuel Corey, beard by Judge TI. B. Starbuch and a jury, at December Term, 1900, of Pitt County Superior Court. Erom judgment for plaintiff, tbe defendants appealed.\nBhinner & Whedbee, for plaintiff.\nJarvis & Blow, and Shepherd & Shepherd, for tbe defendant." }, "file_name": "0042-01", "first_page_order": 78, "last_page_order": 81 }