#### G. F. WILLIAMS v. CHARLES F. DUNN et als.

(Filed 6 October, 1909.)

1. Deeds and Conveyances — Mortgages—Pleadings—Cancellation— Evidence.

In an action for the cancellation of a bond and mortgage on plaintiff’s land, plaintiff alleged that they were given defendants, upon consideration that the latter would pay a certain prior mortgage indebtedness of plaintiff, which, owing to the defendant’s delay, plaintiff had to pay when he was in imminent danger of losing the land under foreclosure. The answer raised no material issue. Hold, upon the pleadings, it appeared there was a failure of consideration and the bond and mortgage should be cancelled.

2. Appeal and Error — Admissions of Counsel — Deeds and Conveyances — Cancellation—Conditions Precedent.

When it is adjudged from the pleadings that plaintiff is entitled to the relief demanded, that his certain bond and mortgage held by the defendants be cancelled, and it appears, from facts admitted by counsel on 'appeal that defendants should first be repaid a certain suni of- money they had paid to plaintiff in consideration of the transaction relieved against, the cancellation of the bond and mortgage will be decreed upon the condition of defendants’ being repaid.

3. Appeal and Error — Reversed on Merits — Judgment Modified — Costs.

On this appeal, the plaintiff (appellant) having succeeded upon the substantial merits of the case, and the judgment below being modified upon admission of plaintiff’s counsel, the defendants, not appealing as to that matter, are taxed with the costs of appeal.

Appeal by defendants from W. B. Allen, J., June Term, 1909, of LeNOIR.

Tbe facts are sufficiently stated in tbe opinion.

Y. T. Ormond for plaintiff.

C. F. Dunn for defendant.

Walker, J.

Tbis is a civil action, brought by tbe plaintiff, for tbe cancellation oí a bond and mortgage given by bim to tbe defendant. It is alleged in tbe complaint that, in consideration of tbe execution of tbe bond and mortgage, tbe defendant agreed to pay certain indebtedness, in tbe amount of $565, of tbe plaintiff to 1be Kinston Insurance and Realty Company, and of $300 to L. Harvey & Son, and to satisfy a judgment of $50 against tbe plaintiff. Tbe plaintiff’s counsel admitted bere tbat tbe defendants bad paid tbe plaintiff tbe sum of $10 at tbe time tbe papers were executed. It was so alleged in section 4 of tbe com*108plaint and denied in tbe answer, but we will act upon tbe admission of counsel in tbe disposition of tbe case upon its merits. Tbe defendant filed an answer, but no material issue was raised by its denials or by any affirmative averments therein. Tbe court adjudged, upon tbe pleadings, that tbe bond and mortgage be cancelled, and tbe defendant, having duly excepted, appealed to this Court.

Having carefully exariiined tbe pleadings iñ tbe case, we have been unable to discover that they raise any issue of law or of fact fit to be considered by tbe court or jury. Tbe defendants obtained tbe bond and mortgage upon a promise to tbe plaintiff, with which they have failed to comply, and, upon their own showing, they» have no defense to tbe cause of action set out in tbe complaint. Indeed, they seem to have played “fast and loose” with tbe plaintiff, and to have bad little or no regard for their duty as fiduciaries toward him. They permitted bis land to be advertised for sale by bis creditor, and be was in imminent danger of losing it, when be paid off the encumbrance. Tbe day after this was done, 'the defendants, it seems, tendered tbe amount due upon tbe debt, to pay which tbe land bad been advertised for sale, but be was too late. Tbe 'debt was due, and be should have been more diligent, and, furthermore, by tbe terms of bis contract, be was required to be so. Tbe plaintiff, having been compelled to pay the money in order to save bis land, is entitled to be reimbursed by tbe defendants.

The defendants are entitled to have tbe $10 which was paid by them returned by tbe plaintiff, and tbe bond and mortgage will not be cancelled until this is done. Tbe judgment, as thus modified, is affirmed, but tbe defendants must pay tbe costs- of this Court, as they did not specially appeal, because tbe plaintiff bad been, allowed to retain the amount so paid, and tbe plaintiff has succeeded in this Court upon tbe substantial merits of the cáse.

Judgment modified.