{
  "id": 8651685,
  "name": "BUNN v. BRASWELL",
  "name_abbreviation": "Bunn v. Braswell",
  "decision_date": "1906-09-25",
  "docket_number": "",
  "first_page": "113",
  "last_page": "116",
  "citations": [
    {
      "type": "official",
      "cite": "142 N.C. 113"
    }
  ],
  "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": "5 N. C., 117",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 320,
    "char_count": 5736,
    "ocr_confidence": 0.435,
    "pagerank": {
      "raw": 7.036751657535845e-08,
      "percentile": 0.42451586945802633
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    "sha256": "4bb4742bd6a9ad06a360c74d39f1fcc535c84bb8555ef18609c87374fc73f019",
    "simhash": "1:8e5a4ed3188be475",
    "word_count": 994
  },
  "last_updated": "2023-07-14T19:55:29.740348+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "BUNN v. BRASWELL."
    ],
    "opinions": [
      {
        "text": "Beown, J.\nTbe petition to rebear tbis case assigns two errors in tbe opinion of tbe Court: 1. Eor that tbe Court in its application of tbe law to tbe facts of tbe case inadvertently added to tbe facts wbicb were agTeed upon in tbe lower Court and upon wbicb tbe Court\u2019s judgment was hypothe-cated, a finding of fact not in tbe record and not actually existing, viz., that tbe relation of mortgagor and mortgagee subsisted between tbe plaintiff and tbe defendant at tbe time of tbe institution of tbe action in ejectment in 1888.\n2. Eor that, granting tbe correctness of every legal proposition laid down by tbe Court, and that its findings and inferences of fact were supported by tbe record, yet tbe conclusion reached by tbe Court in its opinion is erroneous.\nAs to tbe first allegation, tbe learned counsel for tbe plaintiff are themselves inadvertently inaccurate. In tbe well-considered opinion delivered for tbe Court by Mr. Justice Gonnor no finding of fact is made and none \u201cadded to tbe facts wbicb were agreed upon in tbe lower Court.\u201d It will be observed upon reading tbe opinion that tbe writer was reciting only tbe contentions of tbe defendant when be stated that tbe declaration in tbe decree of 1889 \u201cthat 'the defendant has an equity to redeem tbe land\u2019 shows clearly that tbe relation of mortgagor and mortgagee at that time and theretofore existed between tbe parties, and not that be was by tbe judgment given, such equity; that tbe judgment was a recognition. of tbe existence thereof.\u201d\nUpon a re-examination of tbe consent decree, we think there is much upon its face to support tbe defendant\u2019s argument. N. W. Boddie bad in 1888- recovered a final judgment by default for tbe land. Why set it aside by consent and substitute in its place such an instrument as tbe decree of 1889 ? It is not likely that Boddie would take such a method of selling to Braswell a tract of land which tbe latter bad never theretofore bad any interest in. Couple tbe language of tbe consent decree with tbe admitted fact of Bras-well\u2019s prior possession, and tbe inference is very strong that the relation of mortgagor and mortgagee existed between tbe parties prior to 1888. Why use tbe words \u201cthat' said judgment (of 1888) is so far modified as to declare that tbe defendant has an equity to redeem tbe land\u201d ? Where did tbe defendant get bis equity of redemption which tbe decree says be bad at that time? Tbe plaintiff\u2019s counsel say that tbe decree does not confer any such equity and that tbe defendant never bad it before. This argument is at variance with tbe plain language of tbe decree. Tbe plaintiff contends that tbe decree is a contract to buy tbe land by tbe defendant. Tbe word \u201credeem\u201d does not mean to \u201cbuy.\u201d It means to \u201cbuy back,\u201d \u201cto liberate an estate by paying tbe debt for which it stood as security,\u201d \u201cto repurchase in a literal sense.\u201d Black Law Diet., 1008. It therefore follows that tbe defendant could not have an equity to redeem tbe land unless be previously owned it. This argument is not based upon any agreed facts, but upon tbe context of tbe decree itself. If tbe decree was intended to constitute a conditional sale of land which tbe defendant did not previously own, then tbe words we have quoted are very much out of place. \u201cTbe right of redemption is an inseparable incident to a mortgage ; while in tbe case of a conditional sale tbe rights of tbe vendor are those expressly reserved to him by the agreement, and those only.\u201d Thomas on Mort. (2 Ed.), sec. 32.\nWe do not deem it necessary to consider the second ground of error in the petition to rehear. It is a broadside fired at the judgment of the Court and points out no material point overlooked and no material fact that escaped the Court\u2019s attention, and cites no new authority that is antagonistic to the conclusions reached by the Court, viz., first, that the language of the decree is strong evidence that the relation of mortgagor and mortgagee existed prior thereto, and, second, that the decree itself creates by its very terms the relation of mortgagor and mortgagee. Wilcox Heirs v. Morris, 5 N. C., 117. It therefore follows that the mortgagor, and those claiming under him, being continuously in possession since the decree, the plaintiff must show some payment or other fact that will bar the running of the statute of limitations.\nPetition Dismissed.",
        "type": "majority",
        "author": "Beown, J."
      }
    ],
    "attorneys": [
      "F. 8. Spruill for tbe petitioner.",
      "Austin & Grcmtham in opposition."
    ],
    "corrections": "",
    "head_matter": "BUNN v. BRASWELL.\n(Filed September 25, 1906).\nConsent Judgment \u2014 Mortgagor and Mortgagee \u2014 Conditional Sale \u2014 Statute of Limitations \u2014 Petition to Rehear \u2014 Assignment of Errors.\n1. The language of the consent decree that a final judgment rendered in 1888 by default for land is \u201cso far modified as to declare that the defendant has an equity to -redeem the land,\u201d coupled with the admitted fact of defendant\u2019s prior possession, is strong evidence that the relation of mortgagor and mortgagee existed prior to 1888, and that the decree itself creates by its very terms this relation, and that it does not constitute a conditional sale.\n2. Where the mortgagor and those claiming under him have been in continuous possession since the consent decree in 1889, the plaintiff must show some payment or other fact that will bar the running of the statute of limitations.\n3. It is uimecessaj.y to consider a broadside assignment of error in a petition to rehear, \u201cfor that, granting the correctness of every legal proposition laid down by the Court, and that its findings and inferences of fact were supported by the record, yet the conclusion reached by the Court in its opinion is erroneous.\u201d\nPbxitiof by tbe plaintiff to rebear tbis canse, wbicb was decided at tbe Eall Term, 1905, and reported in 139 N. 0., 135.\nF. 8. Spruill for tbe petitioner.\nAustin & Grcmtham in opposition."
  },
  "file_name": "0113-01",
  "first_page_order": 143,
  "last_page_order": 146
}