{ "id": 8624886, "name": "MRS. TROY SMITH (One and the Same Person as ELIZABETH DAVIS SMITH), and Her Husband, TROY SMITH; and WACHOVIA BANK & TRUST COMPANY and REBECCA W. DAVIS, as Executors Under the Will of JAMES M. DAVIS; and WACHOVIA BANK & TRUST COMPANY, as Trustee Under the Will of JAMES M. DAVIS, v. HENRY W. DAVIS and Wife, LOUISE W. DAVIS, ALLIE B. WARE RENDLEMAN, as Executrix Under the Will of JOHN L. RENDLEMAN, SR., Trustee, R. C. BOYCE, GURNEY P. HOOD, Commissioner of Banks, ELLEN L. GLOVER, E. B. BANKETT, Trading as SALISBURY IGNITION & BATTERY SERVICE; COUNTY OF ROWAN, NORTH CAROLINA, CITY OF SALISBURY, NORTH CAROLINA, DAN NICHOLAS and FIRST NATIONAL BANK OF SALISBURY", "name_abbreviation": "Smith v. Davis", "decision_date": "1947-11-19", "docket_number": "", "first_page": "172", "last_page": "181", "citations": [ { "type": "official", "cite": "228 N.C. 172" } ], "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": "127 S. E., 205", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N. C., 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654156 ], "opinion_index": 0, "case_paths": [ "/nc/189/0316-01" ] }, { "cite": "199 S. E., 620", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N. C., 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631229 ], "opinion_index": 0, "case_paths": [ "/nc/214/0447-01" ] }, { "cite": "194 S. E., 278", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616231 ], "opinion_index": 0, "case_paths": [ "/nc/212/0620-01" ] }, { "cite": "147 S. E., 674", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N. C., 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626839 ], "opinion_index": 0, "case_paths": [ "/nc/197/0030-01" ] }, { "cite": "25 S. E., 719", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "119 N. C., 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656138 ], "opinion_index": 0, "case_paths": [ "/nc/119/0779-01" ] }, { "cite": "167 S. E., 469", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N. C., 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612012 ], "opinion_index": 0, "case_paths": [ "/nc/204/0109-01" ] }, { "cite": "122 S. E., 377", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N. C., 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654294 ], "opinion_index": 0, "case_paths": [ "/nc/187/0520-01" ] }, { "cite": "59 S. E., 685", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "146 N. C., 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270593 ], "opinion_index": 0, "case_paths": [ "/nc/146/0191-01" ] }, { "cite": "21 S. E., 177", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "116 N. C., 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654494 ], "opinion_index": 0, "case_paths": [ "/nc/116/0161-01" ] }, { "cite": "1 S. E., 459", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "96 N. C., 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649473 ], "opinion_index": 0, "case_paths": [ "/nc/96/0118-01" ] }, { "cite": "87 N. C., 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693845 ], "opinion_index": 0, "case_paths": [ "/nc/87/0404-01" ] }, { "cite": "82 N. C., 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682706 ], "opinion_index": 0, "case_paths": [ "/nc/82/0234-01" ] }, { "cite": "27 N. C., 341", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274803 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/27/0341-01" ] }, { "cite": "227 N. C., 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623613 ], "opinion_index": 0, "case_paths": [ "/nc/227/0251-01" ] }, { "cite": "219 N. C., 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624682 ], "opinion_index": 0, "case_paths": [ "/nc/219/0468-01" ] }, { "cite": "227 N. C., 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626808 ], "opinion_index": 0, "case_paths": [ "/nc/227/0622-01" ] } ], "analysis": { "cardinality": 928, "char_count": 26402, "ocr_confidence": 0.463, "pagerank": { "raw": 4.6858543915936275e-07, "percentile": 0.928280374647325 }, "sha256": "b650d2aa0a26e28b99a36e6f77f370e42197b96f4bcdaa4ac3bccd68cb4fbf51", "simhash": "1:eee588500e6694f8", "word_count": 4592 }, "last_updated": "2023-07-14T21:52:37.324265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. TROY SMITH (One and the Same Person as ELIZABETH DAVIS SMITH), and Her Husband, TROY SMITH; and WACHOVIA BANK & TRUST COMPANY and REBECCA W. DAVIS, as Executors Under the Will of JAMES M. DAVIS; and WACHOVIA BANK & TRUST COMPANY, as Trustee Under the Will of JAMES M. DAVIS, v. HENRY W. DAVIS and Wife, LOUISE W. DAVIS, ALLIE B. WARE RENDLEMAN, as Executrix Under the Will of JOHN L. RENDLEMAN, SR., Trustee, R. C. BOYCE, GURNEY P. HOOD, Commissioner of Banks, ELLEN L. GLOVER, E. B. BANKETT, Trading as SALISBURY IGNITION & BATTERY SERVICE; COUNTY OF ROWAN, NORTH CAROLINA, CITY OF SALISBURY, NORTH CAROLINA, DAN NICHOLAS and FIRST NATIONAL BANK OF SALISBURY." ], "opinions": [ { "text": "WiNBORNE, J.\nThe record on this appeal shows that during the course of the hearing in the trial court defendants, appellants, entered numerous exceptions to the admission of evidence, as well as exceptions to the denial of their motions for judgment as of nonsuit, \u2014 all of which are grouped in the assignments of error shown. The record also shows that there is no exception to any finding of fact made by the court. There is exception to the signing of the judgment. In the light of this situation, the exceptions to the evidence offered are ineffectual. However, on examination they are found to be without merit. And the exception to the signing of the judgment raises only the question as to whether the facts as found by the court are sufficient to support the judgment. That is, such exception challenges only the conclusions of law upon the facts so found. Hylton v. Mt. Airy, 227 N. C., 622, 44 S. E. (2d), 51; Vestal v. Machine Co., 219 N. C., 468, 14 S. E. (2d), 427; Manning v. Ins. Co., 227 N. C., 251, 41 S. E. (2d), 767, and cases cited.\nThe questions thus raised in the present case are fundamental and tantamount to question presented on motion for judgment as of nonsuit.\nThe two questions of law arising upon the facts found and presented by appellant for decision and determinative of this appeal are these:\nI. Are the two notes executed by Henry W. Davis to Mrs. Troy Smith and to James M. Davis, respectively, sued upon in this action, and the deed of trust to John L. Rendleman, Sr., Trustee, securing the same, sought to be foreclosed, barred by the ten year statute of limitations\u2014 G. S., 1-47 (2), and G. S., 1-47 (3), respectively? In the light of the facts found by tbe .court in respect of tbe payments made in January, 1945, by Henry W. Davis on these notes tbe decisions of this Court provide a negative answer to tbe question. See Walton v. Robinson, 27 N. C., 341; Hewlett v. Schench, 82 N. C., 234; McDonald v. Dickson, 87 N. C., 404; Bank v. Harris, 96 N. C., 118, 1 S. E., 459; Battle v. Battle, 116 N. C., 161, 21 S. E., 177; Supply Co. v. Dowd, 146 N. C., 191, 59 S. E., 685; Kilpatrick v. Kilpatrick, 187 N. C., 520, 122 S. E., 377; Grocery Co. v. Hoyle, 204 N. C., 109, 167 S. E., 469.\nThose payments had tbe effect of -reviving tbe liability of Henry W. Davis on these notes. In Walton v. Robinson, supra, decided in tbe year 1845, Ruffin, G. J., states that, \u201cNothing is plainer than that making a payment on a note repels tbe statute. It is assuming tbe payment anew.\u201d And this principle is not altered by tbe provisions of G. S., 1-26, originally enacted as Section 51 of Tbe Code of Civil Procedure of North Carolina (1868), prescribing that a new promise to pay an indebtedness must be in writing, in that it expressly provides therein that \u201cthis Section does not alter tbe effect of any payment of principal or interest.\u201d Tbe decisions of this Court treating of this provision bold that tbe effect of this clause is to leave tbe law as it was prior to tbe adoption of Tbe Code of Civil Procedure as regards tbe effect of a partial payment in removing tbe bar of tbe statute of limitations. Bank v. Harris, supra; Battle v. Battle, supra; Supply Co. v. Dowd, supra; Kilpatrick v. Kilpatrick, supra.\nAnd in Hewlett v. Schenck, supra (1879), Smith, C. J., wrote in reference thereto: \u201cSo a' partial payment, though the evidence need not be in writing, being an act and not a mere declaration, revives tbe liability because it is deemed a recognition of it and an assumption anew of tbe balance due. But if at tbe time such payment is made tbe presumption arising from tbe unexplained fact is disproved by tbe attending circumstances or other sufficient evidence of a contrary intent, tbe payment will not have such effect.\u201d\nAnd in tbe Supply Company case, it is said: \u201cTbe general principle on which part payment takes tbe case out of tbe statute is that tbe party paying intended by it to acknowledge and admit tbe greater debt to be due.\u201d Also in tbe Kilpatrick case (1924), supra, Hoke,'J., declares that \u201cTbe authorities further bold that, in order to constitute a renewal of an account or obligation otherwise barred by tbe statutes of limitations, tbe alleged payment must be made and received \u2018under circumstances permitting tbe inference that tbe debtor did so in recognition of tbe existence of the debt and of bis obligation to pay the same.\u2019 \u201d\nTested by these principles, tbe facts as found here by tbe court, \u2014 that at tbe times tbe payments were made tbe defendant Henry W. Davis acknowledged bis indebtedness upon each of said notes and expressed bis desire to pay tbe same in full as and when bis income permitted, in law amount to a revival of tbe indebtedness, \u2014 thereby fixing a new date from wbieb tbe statutes of limitations begin-to run.\nNow, as to whether an action for tbe foreclosure of tbe deed of trust executed by Henry W. Davis and wife to John L. Rendleman, Sr., Trustee, as security for said note, is barred by tbe ten year statute of limitations, G. S., 1-47 (3), it is sufficient to point to tbe statute which provides that such action may be commenced \u201cwithin ten years after tbe last payment on tbe same.\u201d\nII. \u00a5e come now to this question: Where tbe bolder of an indebtedness secured by a deed of trust, duly registered, fails, within tbe period of fifteen years from tbe date when tbe conditions of it, by tbe terms thereof, are due to have been complied with, or from tbe maturity of tbe last installment of debt or interest secured thereby, to file and register an affidavit, or in lieu thereof make marginal entry on tbe record in accordance with provisions of statute, G. S., 45-37 (5), originally P. L. 1923, Chapter 192, is tbe conclusive presumption of compliance with tbe conditions of tbe deed of trust, or of tbe payment of tbe debt secured thereby, provided for under tbe said statute, available thereafter to those who become creditors of tbe trustor within said period of fifteen years?\nTbe answer is to be found in tbe proper interpretation or construction of tbe statute. While tbe exact question has not been presented previously to this Court, reasonable interpretation and construction of the context of tbe statute in tbe light of tbe caption of tbe act as originally enacted by tbe General Assembly and of existing law leads to a conclusion accordant with tbe bolding o\u00ed tbe court below predicated upon a negative answer.\nThis statute as originally enacted by tbe General Assembly is captioned \u201cAn Act to Facilitate tbe Examination of Titles and to Create a Presumption of Payment of Instruments Securing tbe Payment of Money After Fifteen Tears from tbe Date of Maturity of tbe Debts Secured Thereby.\u201d And tbe Act provides that: \u201cTbe conditions of every mortgage, deed of trust, or other instrument securing tbe payment of money shall be conclusively presumed to have been complied with or tbe debt secured thereby paid, as against creditors or purchasers for a valuable consideration from tbe trustor, mortgagor or grantor, from and after tbe expiration of fifteen years from tbe date when tbe condition of such instrument by tbe terms thereof are due to have been complied with, or the maturity of tbe last installment of debt or interest secured thereby, unless tbe bolder of tbe indebtedness secured by such instrument or party secured by any provision thereof shall file an affidavit with tbe register of deeds of tbe county where such instrument is registered, in which shall be specifically stated tbe amount of debt unpaid, which is secured by said instrument, or in what respect any other condition thereof shall not have been complied with, whereupon the register of deeds shall record such affidavit and refer on the margin of the record of the instrument referred to therein the fact of the filing of such affidavit, and a reference to the book and page where it is recorded. Or in lieu of such affidavit the holder may enter on the margin of the record any payments that have been made on the indebtedness secured by any such instrument, and shall in such entry state the amount still due thereunder. This entry must be signed by the holder and witnessed by the register of deeds.\u201d Gr. S., 45-37 (5).\nThe parties to this action differ in their views as to the meaning of this statute. The appellants contend that the Legislature in enacting the statute intended that the conclusive presumption of payment should arise in favor of creditors or purchasers for a valuable consideration irrespective of whether the claims are contracted within, or after the expiration of the fifteen year period. On the other hand, appellees contend that the Legislature in enacting the statute intended that the conclusive presumption of payment should arise in favor of only those creditors or purchasers for a valuable consideration whose claims are contracted after the expiration of the fifteen year period. Stated concisely, to what creditors or purchasers for a valuable consideration did the Legislature intend to afford protection by enacting the statute ?\nAt the time of the enactment of this statute, 1923, the law with respect to the revival and renewal of existing obligations prevailed as it does now and as it is applied here in answer to the first question. No statutory provision had been made for the public in dealing with the mortgagor, trustor or grantor to ascertain whether the indebtedness secured by an old and unsatisfied mortgage or deed of trust or other instrument had been paid. And, in providing a remedy for such difficulty, the Legislature must have passed the act in the light of the well settled principles of the law that an obligation otherwise barred by the statute of limitations could be revived by a payment thereon, as hereinabove held, or by written acknowledgment as provided by statute, Gr. S., 1-26. The caption of the act would indicate as much. Therefore, if the context of the statute under consideration be not clear as to what the Legislature intended, the caption of the act as originally enacted tends to clarification.\nIt is a well established rule of construction in this State that when the meaning of an act of the General Assembly is in doubt, reference may be had to the title and context of the act of legislative declarations of the purpose of the act, \u2014 the intent and spirit of the act controlling in its construction. S. v. Woolard, 119 N. C., 779, 25 S. E., 719; Machinery Co. v. Sellers, 197 N. C., 30, 147 S. E., 674; Dyer v. Dyer, 212 N. C., 620, 194 S. E., 278; S. v. Keller, 214 N. C., 447, 199 S. E., 620.\nIn tbe case in band, tbe first clause of tbe caption or title of tbe act indicates tbe primary purpose of tbe act, tbat is, to facilitate tbe examination of titles. \u201cTo facilitate\u201d according to Webster\u2019s Dictionary, means \u201cto make easy or less difficult, to .free from difficulty or impediment.\u201d In tbis light tbe provisions of tbe statute in respect to tbe presumption of payment, are prospective. For whose benefit then did tbe Legislature intend to make easy or less difficult tbe examination of titles, \u2014 tbe creditor who wishes to deal with tbe mortgagor, trustor or grantor oil tbe faith of tbe presumption of payment created by tbe statute, or tbe creditor who becomes a creditor of tbe mortgagor or trustor, or grantor before tbe presumption of payment arises ?\nIn tbis respect, we agree with argument advanced by appellee tbat tbe primary purpose sought to be accomplished was to promote freer marketability in cases where old and unsatisfied mortgages and deeds of trust, securing debts, were hampering real estate transaction, and tbat tbis economic purpose is adequately accomplished by furnishing protection to parties who extend credit or purchase for a valuable consideration \u201cfrom and after\u201d tbe expiration of tbe fifteen year period.\nAn analysis of tbe phraseology of the statute tends to support this view. In brief, tbe statute declares first tbat there shall be a conclusive presumption of payment; next, tbat tbe presumption applies in favor of creditors or purchasers for a valuable consideration from tbe trustor, mortgagor or grantor; and then, tbat tbe presumption shall take effect \u201cfrom and after tbe expiration of fifteen years, etc.\u201d\nIf tbe Legislature bad intended tbe act to favor creditors, who bad extended credit prior to tbe time when tbe presumption of payment arises, an ordinary statute of limitation would have been appropriate.\nIn tbe case Hicks v. Kearney, 189 N. C., 316, 127 S. E., 205, this Court, considering tbis statute, then P. L. 1923, Chapter 192, now Gr. S., 45-37 (5), held tbat tbe conclusive presumption of payment of a debt secured by a mortgage, as against creditors and purchasers for value, after fifteen years, is prospective in its effect. In tbis case Adams, J., speaking of tbe two notes secured by a mortgage, there in question, which antedated tbe passage of tbe act, used tbis expression: \u201cNeither of these debts could have been contracted on tbe faith of tbe statutory presumption unless tbe statute be given retroactive effect.\u201d Appellees contend with force tbat tbe use of tbe words \u201cdebt . . . contracted on tbe faith of tbe statutory presumption\u201d would seem to indicate tbat tbe Court bad more in mind than tbe mere retroactive aspect of tbe statute; tbat, undoubtedly, tbe Court was indicating tbat tbe statute should apply only in favor of creditors who have a debt which was \u201ccontracted on tbe faith o\u00a3 the statutory presumption\u201d; and that such faith could not possibly arise prior to the expiration of the fifteen year period, \u2014 the presumption under the statute not arising until 'the termination of fifteen years.\nIn conclusion, the authorities cited by appellants, and the comparison between the statute in question and the registration statute's advanced by appellants, after careful consideration, fail to carry conviction adverse to the conclusions of law reached by the court below as set forth in the judgment there rendered \u2014 both with respect to appellant The First National Bank of Salisbury and to appellant R. 0. Boyce.\nHence, the judgment below is\nAffirmed.", "type": "majority", "author": "WiNBORNE, J." } ], "attorneys": [ "Linn \u2022& Shuford for plaintiffs, appellees.", "Goughenour \u2022\u00a3 Goughenour, Graige <& Graige, and Walier II. Woodson, Sr.., for The First National Banh of Salisbury, N. G., appellant.", "D. A. Rendleman for R. G. Boyce, appellant." ], "corrections": "", "head_matter": "MRS. TROY SMITH (One and the Same Person as ELIZABETH DAVIS SMITH), and Her Husband, TROY SMITH; and WACHOVIA BANK & TRUST COMPANY and REBECCA W. DAVIS, as Executors Under the Will of JAMES M. DAVIS; and WACHOVIA BANK & TRUST COMPANY, as Trustee Under the Will of JAMES M. DAVIS, v. HENRY W. DAVIS and Wife, LOUISE W. DAVIS, ALLIE B. WARE RENDLEMAN, as Executrix Under the Will of JOHN L. RENDLEMAN, SR., Trustee, R. C. BOYCE, GURNEY P. HOOD, Commissioner of Banks, ELLEN L. GLOVER, E. B. BANKETT, Trading as SALISBURY IGNITION & BATTERY SERVICE; COUNTY OF ROWAN, NORTH CAROLINA, CITY OF SALISBURY, NORTH CAROLINA, DAN NICHOLAS and FIRST NATIONAL BANK OF SALISBURY.\n(Filed 19 November, 1947.)\n1. Appeal and. Error \u00a7 6c (3)\u2014\nWhere a jury trial is waived and the parties agree that the court find the facts, exceptions to the admission of evidence are ineffectual when there are no exceptions to the findings of fact.\n2. Appeal and Error \u00a7 40a\u2014\nAn exception to the signing of the judgment raises the question whether there is error in the conclusions of law upon the facts found.\n3. Limitation of Actions \u00a7 12a\u2014\nA partial payment on the principal of a note under circumstances permitting an inference that the debtor recognizes tbe debt and his obligation to pay same amounts in law to a revival of the indebtedness and fixes a new date from which the statute of limitations begins to run. G. S., 1-47 (2).\n4. Mortgages \u00a7 30i (1)\u2014\nWhere partial payment is made on a note secured by deed of trust, action to foreclose the instrument is not barred until ten years from date of such payment. G. S., 1-47 (3).\n5. Statutes \u00a7 5\u2014\nWhere the meaning of a statute is in doubt, reference may be had to the title and context of the act as legislative declarations of its purpose.\n6. Same\u2014\nThe intent and spirit of an act is controlling in its construction.\n7. Mortgages \u00a7 30i (2) \u2014\nConstruing the language of G. S., 45-37 (5), with reference to the caption of the original act and the purpose sought to be accomplished, it is held the presumption of payment of a mortgage or deed of trust arises in favor of creditors or purchasers for valuable consideration from the mortgagor or trustor who extend credit or purchase after the expiration of the fifteen year period, and does not arise in favor of those who become creditors or purchasers for valuable consideration prior thereto.\nAppeal by defendants R. 0. Boyce and First National Bank of Salisbury, N. 0., from Alley, J., at March Term, 1947, of RowaN.\nCivil action to recover against defendant Henry W. Davis on two certain promissory notes of hand and under seal dated 15 March, 1927, due one year after date, allegedly executed by him to plaintiff Mrs. Troy Smith and to James M. Davis, respectively, \u2014 the latter now being deceased, and testator of plaintiffs Wachovia Bank and Trust Company and Rebecca W. Davis, Executors, \u2014 and to foreclose on first deed of trust executed cotemporaneously therewith to John L. Rendleman, Sr., Trustee, conveying as security therefor an undivided one-third interest in certain land in city of Salisbury, North Carolina.\nDefendant, R. C. Boyce and First National Bank of Salisbury answering the complaint of plaintiffs, deny that any indebtedness is now secured by the deed of trust, for that plaintiffs having failed to comply with the provisions of G-. S., 45-37 (5), payment is conclusively presumed, and' they plead payment and conclusive presumption of payment, and the ten years statute of limitation in bar of .plaintiffs\u2019 right to recover in this action.\nWhen the case came on for hearing in Superior Court a jury trial was waived, and the parties agreed in open court that the Judge presiding should find the facts from evidence introduced by the parties, and thereupon enter judgment. In accordance therewith the Judge found facts, in summary pertinent to this appeal, as follows :\nI. On 15 March, 1927, Henry W. Davis borrowed the sum of $10,000 each from plaintiff, Mrs. Troy Smith, and from James M. Davis, \u2014 who died testate 16 November, 1943, naming Wachovia Bank and Trust Company, Executor and Trustee, and Rebecca W. Davis, Executrix,\u2014 and delivered to each his promissory note in said amount bearing interest, and due one year after date, and cotemporaneously therewith he, Henry W. Davis, and his wife, Louise W. Davis, executed and delivered to John L. Rendleman, Sr., a deed of trust conveying as security therefor an undivided one-third interest in and to certain land in the city of Salisbury, N. C., which deed of trust was duly registered on 29 March, 1927, in the mortgage deed records for Rowan County, N. C:\nII. Henry W. Davis paid the interest on the note to Mrs. Troy Smith to 1 April, 1928, and on the note to James M. Davis to 1 July, 1929, but made no further payment on principal of or interest on either of said notes until the year 1945, when on 20 January, of that year, he paid to plaintiff Mrs. Troy Smith the sum of $186.50, and when on 19 January, of that year, he paid to the Executors of the estate of James M.' Davis the sum of $186.51, upon the principal indebtedness- represented by said notes respectively, at which times defendant, Henry W. Davis, acknowledged his indebtedness upon each of said notes and'expressed his desire to pay the same in full as and when his income permitted, and by virtue of said notes, respectively, he is indebted (1) to plaintiff Mrs. Troy Smith in the sum of $10,000, with interest from 1 April, 1928, at rate of 6% per annum, computed semiannually, subject to a credit upon the principal of said indebtedness of $186.50, with interest thereon from 20 January, 1945, and (2) to plaintiffs, Wachovia Bank and Trust Company, and Rebecca W. Davis, Executors under the will of James M. Davis, in the sum of $10,000 with interest from 1 July, 1929, at rate of 6% per annum, computed semiannually, subject to a credit upon the principal of said indebtedness in the sum of $186.51 with interest thereon from 19 January, 1945.\nIII. The plaintiff, Mrs. Troy Smith, and James M. Davis, he then being alive, failed, within the period of fifteen years after the maturity of the last installment of debt or interest secured by the terms of the deed of trust executed and delivered to John L. Rendleman, Sr., Trustee, that is, within fifteen years after 15 March, 1928, to file an affidavit with the register of deeds of Rowan County, North Carolina, where said deed of trust is registered, specifically stating the amount of debt unpaid secured thereby, or in what respect any other condition of said instrument had not been complied with, and also failed in lieu of such affidavit to enter on the margin of the record of said deed of trust any payments made on the indebtedness secured by it, and the amount still due thereunder,t \u2014 and no such affidavit or marginal reference has ever been filed or entered in the office of the register of deeds for Rowan County, N. O.\nIY. On 7 November, 1933, at time when the deed of trust executed by defendants, Henry W. Davis and his wife, Louise W. Davis, to John L. Rendleman, Sr., Trustee, referred to above, was duly registered, and in full force and effect, the defendant First National Bank of Salisbury, N. C., loaned to defendants Henry W. Davis and wife, Louise W. Davis, the sum of $8,225.00, for which they executed their promissory note in said sum to the Bank, and, upon default in payment of -the note, the Bank obtained a judgment against Henry W. Davis and wife, Louise W. Davis, on 21 October, 1935, for the full amount of the note with interest thereon from 1 August, 1935, which judgment was duly docketed in office of clerk of Superior Court of Rowan Comity, N. C.\nY. Thereafter, on 15 June, 1945, defendant First National Bank of Salisbury procured the issuance of a writ of execution upon the said judgment against Henry W. Davis and wife, Louise W. Davis, directed to the sheriff of Rowan County, and commanding the sale of lands and property of Henry W. Davis,' \u2014 being the same property described in the deed of trust executed to John L. Rendleman, Sr., Trustee, securing the payment of the notes originally executed and delivered to plaintiff, Mrs. Troy Smith, and to, James M. Davis. Pursuant thereto the sheriff exposed the interest of Henry W. Davis and wife, Louise W. Davis, in said lands to public sale at the courthouse door in Salisbury, N. C., on 6 September, 1945, when and where C. A. Mayfield became the last and highest bidder at the price of $7,500. (At the sale and prior to the bidding and in the presence of O. A. Mayfield, and other bidders then and there present, and at the instance of plaintiffs, the sheriff read a notice from plaintiffs that the interest of Henry W. Davis and wife, Louise W. Davis, in the land proposed to be sold under said execution is subject to the prior lien of the deed of trust executed by them to John L. Eendle-man Sr., Trustee, as aforesaid, securing the payment of the two notes therein described, the aggregate of principal and interest thereon due as of that date, in the sum of $39,755.90, and that the purchaser at such sale would take title to said premises subject to the lien of the said deed of trust and the notes thereby secured.)\nVI.' Subsequently C. A. Mayfield transferred and assigned his bid to E. C. Boyce, who, having knowledge of the claim of the plaintiffs that the lien of said deed of trust was still valid and in effect, declined to comply with the terms of the bid, until defendant First National Bank of Salisbury, through its board of directors, adopted a resolution in which it was agreed that in consideration of E. C. Boyce going through, with the sale, and paying the purchase price, and taking legal action to clear the title to the property, the Bank would indemnify him in the event he failed to have the deed of trust \u201cdeclared void and barred by the statute of limitations, or the title affected.\u201d Pursuant thereto, E. C. Boyce paid the purchase price and obtained a deed from the sheriff to him dated 18 September, 1945, conveying \u201call right, title, interest and estate of the said Henry ~W. Davis and Louise W. Davis, judgment debtors\u201d in the said lands, \u2014 which deed was filed for registration on 21 September, 1945, and registered in record of deeds in office of register of deeds for Eowan County, N. C.\nVII. And thereafter the net balance of the proceeds from the execution sale were delivered to the Bank, and converted by it on 26 September, 1945, into its cashier\u2019s check, which has not been cashed and is now held by the Bank subject to the result of this action.\nUpon the foregoing findings of fact, the court being of .opinion as matters of law ,(1) that the plaintiffs 'are entitled to recover against defendant Henry W. Davis, the amounts due upon the notes executed by him to them, as afore-stated, (2) that the lien of the deed of trust executed by defendants, Henry W. Davis and wife, Louise W. Davis, to John L. Eendleman, Sr., Trustee, is valid and subsisting for the purpose of securing said indebtedness, (3) that each and all of the terms and conditions of the deed of trust have been broken by defendants, Henry \"W\". Davis and wife, Louise W. Davis, and (4) that plaintiffs are entitled to have said deeds of trust enforced and foreclosed and the lands described sold, and the proceeds arising from the sale applied to and upon the payment of the sums due plaintiffs, entered judgment in accordance therewith (a) for the sale, of the lands and the application of proceeds of sale to payment of costs and expenses of sale, including an allowance to the commissioner, and all ad valorem taxes upon the premises due the county of Rowan and the city of Salisbury, N. 0., and balance into office of clerk of Superior Court of Rowan County to be applied on this judgment, and any \u201coverplus to be paid to the defendant, R. C. Boyce\u201d; and (b) barring defendants and all persons having liens subsequent to the date of deed of trust, etc.\nDefendants, R. 0. Boyce and First National Bank of Salisbury, appeal therefrom to Supreme Court and assign error.\nLinn \u2022& Shuford for plaintiffs, appellees.\nGoughenour \u2022\u00a3 Goughenour, Graige <& Graige, and Walier II. Woodson, Sr.., for The First National Banh of Salisbury, N. G., appellant.\nD. A. Rendleman for R. G. Boyce, appellant." }, "file_name": "0172-01", "first_page_order": 218, "last_page_order": 227 }