#### D. F. WOOTEN v. JOHN L. BORDEN et al.

(Filed 22 March, 1911.)

Mortgagor and Mortgagee — Contracts—Private Sale — Purchaser— Purchase Price.

One who purchases land at a certain price, on which there was a mortgage, at a private sale from the mortgagee, who cancels his mortgage and thus gives a clear title to the land, is required to pay the price agreed upon without reference to any agreement between the mortgagor and mortgagee as to what part of the difference between the amount of the mortgage and the purchase *371price each was to receive; and the fact in this case, that the mortgagee, who negotiated the sale, received $200 more than his mortgage debt, has no bearing upon the matter.

Appeal by plaintiff from Justice, J., at January Special Term, 1911, of LeNOIR.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.

J. R. Wooten cmd Rouse & Land for plaintiff.

Loftin, Varser & Dawson for defendants.

Clark, C. J.

Tbe plaintiff testified tbat there was an agreement between George Carter and tbe plaintiff by wbicb Carter bad authorized tbe plaintiff to sell tbe land at a price by which be, Carter, would get $750, and pay off a judgment on tbe land for $125, and tbat be (Wooten) could beep tbe balance, $2,250; tbat thus authorized, be contracted with tbe defendant to sell him the land at $3,125; tbat be made out tbe deed for tbe land, reciting tbat consideration, and talked tbe matter over with Borden and Carter; tbat at tbat interview Carter insisted on and obtained some further concessions as to tbe rent for tbat year (wbicb is not material here), and thereupon Carter executed tbe deed and it was delivered to the defendant; tbat thereupon tbe defendant gave a check for tbe $125 judgment and $750 check to George Carter, but learning tbat tbe plaintiff’s mortgage upon tbe land amounted to only $2,049, gave him a check only for tbat amount instead of tbe 2,250 wbicb by virtue of tbe agreement with Carter tbe plaintiff was to receive. Tbe plaintiff now claims tbe difference between tbe said $2,049 and $2,250, with interest thereon.

Upon this evidence bis Honor directed a nonsuit to be entered. In this there was error. Tbe evidence must be taken most strongly in favor of tbe plaintiff. According to tbat evidence, tbe money consideration to be paid by tbe defendant was $3,125. Tbe plaintiff was tbe active party in making tbe sale. As tbe deed was duly executed by Carter and delivered with tbe cancellation of tbe mortgage, it-was-incumbent upon tbe defendant to pay over tbe entire $3,125. It was no concern *372of tbe defendant bow Carter and tbe plaintiff should divide tbe proceeds between them. As between Carter and tbe plaintiff, tbe mortgage due tbe plaintiff was only $2,049, but according to plaintiff’s evidence, wbicb upon tbis motion must be taken as true, Carter agreed tbat tbe plaintiff should have $2,250 out of tbe proceeds of tbe sale. It is probable tbat tbe $201 above tbe amount of tbe mortgage was allowed tbe plaintiff by Carter for bis services in making tbe sale. But however tbat may be, tbe testimony of tbe plaintiff is tbat Carter agreed tbat tbe plaintiff should have $2,250 and tbat be himself would be content with $750. Tbe plaintiff testifies tbat be told tbe defendant tbat be was to have $2,250 out of tbe transaction under bis agreement with Carter. Tbe distribution of tbe purchase money was a matter between Carter and tbe plaintiff wbicb in no wise concerns tbe defendant, who does not deny tbat be agreed to pay $3,125 for tbe land, of wbicb $201 is still unpaid.

"When tbe case goes back, tbe defendant, out of abundant caution, can, if be desires, have George Carter made a party to tbe action.

Tbe judgment of nonsuit must be set aside.

New trial.