{
  "id": 8628268,
  "name": "REMUS WALLACE v. ZEB V. WALLACE et al.",
  "name_abbreviation": "Wallace v. Wallace",
  "decision_date": "1936-11-04",
  "docket_number": "",
  "first_page": "656",
  "last_page": "658",
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    "name": "Supreme Court of North Carolina"
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      "cite": "63 Yt., 231",
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  "last_updated": "2023-07-14T17:57:05.250790+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "REMUS WALLACE v. ZEB V. WALLACE et al."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nThe jury found against the defendant Broadway upon his plea of payment. .He announced in open court that he was not attacking the validity of plaintiff\u2019s lien. Nevertheless, the court held as a matter of law that plaintiff\u2019s mortgage was void, for want of proper parties, under authority of Gorham v. Meacham, 63 Vt., 231, 22 Atl., 572, 13 L. R. A., 676. The conclusion is a non sequitur. Small v. Small, 74 N. C., 16; Younce v. McBride, 68 N. C., 532.\nIn the first place, the validity of plaintiff\u2019s mortgage is not assailed on the present record; and in the next place, the authority cited has reference to a mortgage executed by one to himself as \u201cexecutor,\u201d not as \u201cguardian.\u201d the rule is, that where a guardian takes a deed or mortgage for bis ward, the title is regarded as being in the ward, rather than in the guardian, Small v. Small, supra, 12 R. C. L., 1123, 28 C. J., 1155, while a different rule may prevail as to an executor or administrator. 11 R. C. L., 152, et seq. But, however this may be, the validity of plaintiff\u2019s mortgage is not challenged by the defendant. He specifically refused to do so on the trial, and we think be should be held to bis plea and admission, or election, thus deliberately made. Reed v. Reed, 93 N. C., 462.\nNew trial.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "Jesse A. Jones for plaintiff, appellant.",
      "John G. Dawson and Rouse & Rouse for defendant Broadway, ap-pellee."
    ],
    "corrections": "",
    "head_matter": "REMUS WALLACE v. ZEB V. WALLACE et al.\n(Filed 4 November, 1936.)\n1. Estoppel B a\u2014\nWhere a party announces in open court that he is not attacking the validity of the mortgage involved in the action, but will rely solely upon his contention of payment, he is bound by the admission, and judgment in his favor declaring the mortgage void is error.\n2. Mortgages A a: Guardian and Ward 1) a\u2014\nSince title is deemed to be in the ward when a guardian takes a deed or mortgage for the ward, whether a mortgage executed by an individual to himself as guardian is void for want of proper parties, qucere.\nAppeal by plaintiff from Grady, J., at February Term, 1936, of Lenoie.\nCivil action to recover on promissory note and to foreclose mortgage.\nThe facts are these:\n1. On 1 July, 1925, Zeb Y. Wallace and wife executed to \u201cZeb Y. Wallace, Guardian of Eemus Wallace,\u201d note in the sum of $834.00, due in six months, and to secure the payment of same, executed and registered mortgage on 100 acres of land situate in Lenoir County. The relation between said guardian and ward was that of father and son.\n2. On 24 September, 1927, when Eemus Wallace became of age, he had a settlement with his guardian, and the same was duly recorded in the clerk\u2019s office \u2014 said note and mortgage being turned over to Eemus Wallace \u2014 and reciting: \u201cThis settlement is made in part by notes now in my possession.\u201d\n3. Thereafter, on 4 March, 1929, and again on 25 July, 1930, Zeb Y. Wallace and wife executed notes, secured by deeds of trust on said land, to C. A. Broadway.\n4. In this action to recover on the guardian\u2019s note of $834.00 and to foreclose mortgage given as security therefor, the defendant O. A. Broadway pleads the settlement between the plaintiff and his guardian as payment, and \u201cannounced, in open court, that he was not attacking the validity of the note or lien, but that he was only taking the position that the indebtedness had been paid and that the lien should be canceled because of the payment of the indebtedness.\u201d\n5. The court held as a matter of law that the mortgage given to secure the guardian\u2019s note was void, \u201cbasing his conclusion, in part, upon the case of Gorham v. Meacham, 63 Yt., 231, which holds specifically that a mortgage deed made by a man to himself as \u2018Executor of A. W. Gor-ham\u2019s Estate\u2019 is' absolutely void.\u201d\n6. Yerdict and judgment upon plaintiff\u2019s note, as against the makers, without security, from which the plaintiff appeals, assigning errors.\nJesse A. Jones for plaintiff, appellant.\nJohn G. Dawson and Rouse & Rouse for defendant Broadway, ap-pellee."
  },
  "file_name": "0656-01",
  "first_page_order": 722,
  "last_page_order": 724
}