{ "id": 8559737, "name": "RAY A. CHILDERS and Wife, DOROTHY B. CHILDERS, v. PARKER'S INC.", "name_abbreviation": "Childers v. Parker's Inc.", "decision_date": "1968-08-23", "docket_number": "No. 448", "first_page": "256", "last_page": "264", "citations": [ { "type": "official", "cite": "274 N.C. 256" } ], "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": "158 A.L.R. 364", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "62 Ariz. 239", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5180265 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/62/0239-01" ] }, { "cite": "37 Calif. L. Rev. 690", "category": "journals:journal", "reporter": "Calif. L. Rev.", "opinion_index": 0 }, { "cite": "48 Calif. L. Rev. 48", "category": "journals:journal", "reporter": "Calif. L. Rev.", "year": 1960, "opinion_index": 0 }, { "cite": "51 Calif. L. Rev. 1", "category": "journals:journal", "reporter": "Calif. L. Rev.", "year": 1963, "opinion_index": 0 }, { "cite": "53 Calif. L. Rev. 151", "category": "journals:journal", "reporter": "Calif. L. Rev.", "year": 1965, "opinion_index": 0 }, { "cite": "378 P. 2d 593", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1963, "opinion_index": 0 }, { "cite": "28 Cal. Rptr. 321", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1963, "opinion_index": 0 }, { "cite": "59 Cal. 2d 121", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4392913 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/cal-2d/59/0121-01" ] }, { "cite": "6 A.L.R. 2d 258", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1948, "opinion_index": 0 }, { "cite": "199 P. 2d 757", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1948, "opinion_index": 0 }, { "cite": "88 Cal. App. 2d 617", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2249124 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/cal-app-2d/88/0617-01" ] }, { "cite": "6 A.L.R. 1420", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "year": 1919, "pin_cites": [ { "page": "1424" } ], "opinion_index": 0 }, { "cite": "93 Ore. 668", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4715697 ], "weight": 3, "year": 1919, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/or/93/0668-01" ] }, { "cite": "123 S.E. 196", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "pin_cites": [ { "page": "200" } ], "opinion_index": 0 }, { "cite": "187 N.C. 817", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655253 ], "opinion_index": 0, "case_paths": [ "/nc/187/0817-01" ] }, { "cite": "56 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "231 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629094 ], "opinion_index": 0, "case_paths": [ "/nc/231/0213-01" ] }, { "cite": "80 S.E. 2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "26" } ], "opinion_index": 0 }, { "cite": "239 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627117 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0409-01" ] }, { "cite": "130 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559831 ], "opinion_index": 0, "case_paths": [ "/nc/259/0237-01" ] } ], "analysis": { "cardinality": 842, "char_count": 20380, "ocr_confidence": 0.54, "pagerank": { "raw": 1.1340219055962828e-06, "percentile": 0.9863378135173132 }, "sha256": "b6ef3e07b1a9a80b95c333c4588cf6a90faf2c22a9958cf16341de3f91941c3e", "simhash": "1:07afeae8f0dfbdce", "word_count": 3465 }, "last_updated": "2023-07-14T17:57:51.245619+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HusKiNS, J., took no part in the decision or consideration of this case." ], "parties": [ "RAY A. CHILDERS and Wife, DOROTHY B. CHILDERS, v. PARKER\u2019S INC." ], "opinions": [ { "text": "SHARP, J.\nThis is the second suit which plaintiffs have instituted against defendant on account of Parker\u2019s failure to insert in plaintiffs\u2019 note a recital that it was given for the balance of purchase money of real estate. It is also plaintiffs\u2019 second appeal from a judgment of non-suit. The first action, instituted prior to the time plaintiffs\u2019 liability to Lucas had been established, was dismissed because prematurely brought. Childers v. Parker\u2019s, Inc., 259 N.C. 237, 130 S.E. 2d 323. Plaintiffs\u2019 liability to Lucas now having been established and discharged, their exception to the judgment of nonsuit from which they presently appeal presents this question: Did G.S. 45-21.38, as it was worded on 23 March 1959, apply to a note and deed of trust securing a third party who lent the vendee (his debtor) the purchase price of the land described in the deed of trust? At that time, exclusive of the words in parenthesis, G.S. 45-21.38 provided in pertinent part:\n\u201cIn all sales of real property by mortgagees and/or trustees under powers of sale contained in any mortgage or deed of trust executed after February 6, 1933, or where judgment or decree is given for the foreclosure of any mortgage executed after February 6, 1933, to secure (to the seller the) payment of the balance of the purchase price of real property, the mortgagee or trustee or holder of the notes secured by such mortgage or deed of trust shall not be entitled to a deficiency judgment on account of such mortgage, deed of trust or obligation secured by the same: Provided, said evidence of indebtedness shows upon the face that it is for balance of purchase money for real estate: Provided, further, that when said note or notes are prepared under the direction and supervision of the seller or sellers, he, it, or they shall cause a provision to be inserted in said note disclosing that it is for purchase money of real estate; in default of which the seller or sellers shall be liable to purchaser for any loss which he might sustain by reason of the failure to insert said provisions as herein set out.\u201d\nThe Legislature, by Session Laws 1961, Ch. 604, effective 2 June 1961, amended G.S. 45-21.38 by inserting the words in parenthesis. Thus, the section now applies ipsissimis verbis only to mortgages and deeds of trust given \u201cto secure to the seller the. payment of the balance of the purchase price of real property.\u201d (Italics ours.)\nPlaintiffs\u2019 contentions are that, prior to the 1961 amendment, G.S. 45-21.38 applied to all \u201cpurchase money deeds of trust\u201d \u2014 not only those given to a vendor but also to a lender who provided the purchase price \u2014 if the note showed on its face that it represented the \u201cbalance of the purchase price of real property\u201d described in the instrument securing the debt; that the failure of Parker, who prepared the note and deed of trust for defendant-vendor, to insert this information in the note and deed of trust caused the loss for which plaintiffs seek to recover, and imposes liability upon defendant. Defendant\u2019s contention is that plaintiffs\u2019 note was not for purchase money but money borrowed.\nIn construing a statute with reference to an amendment it is presumed that the legislature intended either (a) to change the substance of the original act, or (b) to^ clarify the meaning of it. 82 C.J.S. Statutes \u00a7 384, p. 897 (1953). The presumption is that the legislature \u201cintended to change the original act by creating a new right or withdrawing any existing one.\u201d 1 Sutherland, Statutory Construction \u00a7 1930 (Horack, 3d ed. 1943). Plaintiffs argue that the 1961 amendment limiting the application of G.S. 45-21.38 to' the vendors of real estate substantiates their contention that prior thereto the section applied to all \u201cpurchase money\u201d notes and deeds of trust. Although the conclusion is that every amendment to an existing statute had a purpose, the presumption that a departure from the old law was intended is merely an aid to interpretation \u2014 not an absolute rule. \u201cIn some cases, the purpose of the variation may be to improve the diction, or to clarify that which was previously doubtful.\u201d 50 Am. Jur. Statutes \u00a7 275, p. 263 (1944). Whereas it is logical to conclude that an amendment to an unambiguous statute indicates the intent to change the law, no such inference arises when the legislature amends an ambiguous provision. 1 Sutherland, Statutory Construction \u00a7 1930 (1968 Cum. Supp. to Horack\u2019s 3d ed., 1943). Even \u201cthe action of the legislature in amending a statute so as to make it directly applicable to a particular case is not a conclusive admission that it did not originally cover such a case.\u201d Black, Interpretation of Laws \u00a7 167, p. 578 (2d ed. 1911).\nTo sustain their contention that the security instrument in suit was a purchase-money deed of trust within the meaning of G.S. 45-21.38 prior to 1961, plaintiffs rely upon Dobias v. White, 239 N.C. 409, 80 S.E. 2d 23 (1954). In Dobias, it was held that a deed of trust given by a vendee to his vendor to secure the purchase price of land other than those described in the security instrument, could not qualify as a purchase-money deed of trust under G.S. 45-21.38. The Court said, \u201cThis is true because a deed of trust is a purchase money deed of trust only if it is made as a part of the same transaction in which the debtor purchases the land, embraces the land so purchased, and secures all or part of its purchase price.\u201d Id. at 412, 80 S.E. 2d at 26. Plaintiffs point out that in listing the indicia of a purchase-money deed of trust, the Court omitted a requirement that it be given by the vendee to the vendor. Plaintiffs argue, therefore, that the note and deed of trust which they gave to Parker, as guardian of Schimmeck, was a purchase-money deed of trust within the meaning of the statute even though it secured money borrowed from a third person to pay the vendor for the land. The definition in Dobias, however, cannot be used as a slide rule to solve the problem here. The credit transaction there involved was between vendor and vendee, not between vendee and a third-party lender. The sole basis of decision was that the deed of trust covered \u201cland other than that purchased from the plaintiffs by the defendants.\u201d Furthermore, the Court did not say that a deed of trust having the listed requisites was necessarily a purchase-money security; it said that a deed of trust lacking them was not. It made no attempt to define the circumstances in which a deed of trust on land \u201csecures all or a part of its purchase price.\u201d\nPlaintiffs also argue that Supply Co. v. Rivenbark, 231 N.C. 213, 56 S.E. 2d 431, Chemical Co. v. Walston, 187 N.C. 817, 123 S.E. 196, and like cases bolster their position that Lucas would not have been entitled to a deficiency judgment had Parker noted in the \u201cevidence of indebtedness\u201d that it was \u201cfor the balance of purchase money of real estate.\u201d These cases hold that when a deed to the vendee and his mortgage to the vendor for the unpaid purchase price \u2014 or to a third party for money loaned to pay the vendee the purchase price \u2014 are delivered and recorded as a part of the same transaction, no lien against the vendee can take precedence over \u201cthe purchase money mortgage.\u201d Chemical Co. v. Walston, supra at 825, 123 S.E. at 200. The theory is that \u201c[t]he title does not rest in the vendee but merely passes through his hands, and during such instantaneous passage no lien against the vendee can attach to the title superior to the right of the holder of the purchase money mortgage.\u201d Supply Co. v. Rivenbark, supra at 214, 56 S.E. 2d at 432. These cases apply to the general rule. They are, however, of no mor\u00e9 assistance in determining the question before us than is the so-called definition of a purchase-money mortgage in Dobias. These decisions, which protect the mortgagee, are based upon the just and sensible proposition that prior creditors should not be enriched at the expense of one whose money has enabled a debtor to acquire additional security.\nLadd & Tilton Bank v. Mitchell, 93 Ore. 668, 184 Pac. 282, 6 A.L.R. 1420 (1919), presented the same question which confronts us. The Oregon statute, Section 426, L. O. L. (now Ore. Rev. Stat. 88.070), provided:\n\u201c \u2018When judgment or decree is given for the foreclosure of any mortgage, hereafter executed, to secure payment of the balance of the purchase price of real property, such judgment or decree shall provide for the sale of the real property, covered by such mortgage, for the satisfaction of the judgment or decree given therein, and the mortgagee shall not be entitled to a deficiency judgment on account of such mortgage or note or obligation secured by the same.\u2019 \u201d\nLike G.S. 45-21.38 prior to 1961, the Oregon statute was not specifically limited to mortgages executed by the vendee to the vendor. The court held, however, that the legislature did not intend the law to apply to security instruments given to third-party lenders because a mortgage given to secure a third-party lender is not a true purchase-money mortgage. The Oregon legislature, the court said, had in view the mortgage which is defined by Black\u2019s Law Dictionary as \u201ca mortgage given, concurrently with a conveyance of land, by the vendee to the vendor, on the same land, to secure the unpaid balance of the purchase price.\u201d The court also noted that 'purchase money passes from the vendee to the vendor; that as between vendee and a third-party lender who furnishes the consideration the vendee pays the vendor, the term is borrowed money. See Black\u2019s Law Dictionary (4th ed., 1951) pp. 1162, 1399.\nA failure to limit the application of \u00a7 426 to the true purchase-money mortgage, the court reasoned, would be to thwart \u201cthe beneficent purpose of the law\u201d to protect the purchaser by discouraging the over-evaluation of real estate. \u201c[I]t was not the intent of the lawmakers to render it more difficult for such a purchaser to obtain a loan and pay the cash for a home, and receive the benefit of any lower price of realty that might be made on account of such cash payment. . . . (If) the lender could only look to the property upon a foreclosure proceeding, then the person wishing to purchase a home or other real property would be hampered and his credit impaired, and it might well be said that, \u2018The last state of that man is worse than the first.\u2019 \u201d Id. at 675-76, 184 P. at 284, 6 A.L.R. at 1424.\nIn interpreting a similar statute, California\u2019s First District Court of Appeal followed the Oregon decision. Peterson v. Wilson, 88 Cal. App. 2d 617, 199 P. 2d 757, 6 A.L.R. 2d 258 (1948). This decision, however, was disapproved by the Supreme Court of California fifteen years later in Bargioni v. Hill, 59 Cal. 2d 121, 28 Cal. Rptr. 321, 378 P. 2d 593 (1963). See 53 Calif. L. Rev. 151 (1965); 51 Calif. L. Rev. 1 (1963); 48 Calif. L. Rev. 48 (1960); 37 Calif. L. Rev. 690. We note, however, that after the decision in Bargioni v. Hill, the California Legislature promptly amended its statute by restricting its application to \u201ca deed of trust, or mortgage, given to the vendor to secure payment of the balance of the purchase price of real property.\u201d Calif. Civ. Proc. Code \u00a7 580b (West 1955) as amended (Supp. 1967).\nWe find the reasoning of the Oregon court convincing, and there are additional grounds for the same interpretation of G.S. 45-21.38. Neither the California nor the Oregon statute contains its requirement that the note show that it is for the purchase money of real estate in order to defeat a deficiency judgment. Nor does either provide that the vendee may recover from the vendor if he suffers a loss because vendor failed to insert in the note a provision disclosing its purchase-money character. These unique features of G.S. 45-21.38 manifest the legislative intent that the statute as originally enacted should apply only to purchase-money mortgages and deeds of trust given by the vendee to the vendor, and that its application to third parties be limited to assignees of the seller. These provisions were obviously designed to protect a vendor\u2019s assignee, who would not know the nature of the transaction. Furthermore, a vendor does not ordinarily prepare the note and deed of trust which his vendee gives to a third-party lender who furnishes the money which pays his purchase price. He usually does, however, prepare the security instruments when they are to be executed to him. Had the legislature intended the statute to apply to security instruments which the vendee gave a third-party lender, it would undoubtedly have provided that the mortgagor might recover his loss from either a seller or lender who prepared the note and failed to insert a disclosure that it represented the purchase price of land. We cannot assume that the legislature intended the statute to apply to both vendor and third-party lender when it placed the duty of inserting the purchase-money disclosure only upon a seller preparing the security instruments for the vendee\u2019s signature.\nWe hold therefore that the 1961 amendment did not change the original meaning of G.S. 45-21.38; it merely made specific that which had theretofore been implicit. See Currie and Lieberman, Purchase Money Mortgages, Etc., 1960 Duke Law J. 1, 18; General Petroleum Co. v. Smith, 62 Ariz. 239, 157 P. 2d 356, 158 A.L.R. 364.\nThe situation here is clouded by the dual positions occupied by Parker, who was not only the president and attorney of defendant, the corporate vendor, but also the guardian of Schimmeck, whose money he loaned to plaintiffs to buy land from his corporation. Indubitably, however, Schimmeck was a third-party lender. Plaintiffs were bound to have known this, for even a hasty glance at the note and deed of trust, which they signed, would have revealed to them the details of the transaction.\nThe judgment of nonsuit is\nAffirmed.\nHusKiNS, J., took no part in the decision or consideration of this case.", "type": "majority", "author": "SHARP, J." } ], "attorneys": [ "Roberts, Frye & Booth for 'plaintiff appellants.", "Jenkins and Lucas and W. Scott Buck for defendant appellee." ], "corrections": "", "head_matter": "RAY A. CHILDERS and Wife, DOROTHY B. CHILDERS, v. PARKER\u2019S INC.\nNo. 448\n(Filed 23 August 1968)\n1. Statutes \u00a7 7\u2014 construction of amendments \u2014 presumptions of legislative intent\nIn construing a statute with reference to an amendment it is presumed that the legislature intended either (1) to change the substance of the original act or (2) to clarify the meaning of it.\n2. Statutes \u00a7 7\u2014 construction of amendments \u2014 presumptions as aid to interpretation\nAlthough the conclusion is that every amendment to an existing statute had a purpose, the presumption that a departure from the old law was intended is merely an aid to interpretation, not an absolute rule.\n3. Statutes \u00a7 7\u2014 amendment of ambiguous statute \u2014 presumptions\nWhereas it is logical to conclude that an amendment to' an unambiguous statute indicates the intent to change the law, no such inference arises when the legislature amends an ambiguous provision.\n4. Mortgages and Deeds of Trust \u00a7 32\u2014 deficiency judgments \u2014 G.S. 45-21.38 \u2014 applicable only to mortgage securing vendor\nAs originally enacted, the provisions of G.S. 45-21.38, which barred recovery of deficiency judgment on purchase-money notes secured by a mortgage or deed of trust if the note disclosed that it was for purchase money of real estate, are held applicable only to purchase-money mortgages and deeds of trust given by the vendee to the vendor and not to a note and deed of trust securing a third party who lent the vendee the purchase price of the land described in the deed of trust.\n5. Mortgages and Deeds of Trust \u00a7 32\u2014 G.S. 45-2i.38 \u2014 effect of 1961 amendment\nThe 1961 amendment to G.S. 45-21.38, which made the section applicable only to mortgages and deeds of trust given \u201cto secure to the seller the payment of the balance of the purchase price of real property,\u201d did not change the original meaning of the statute; it merely made specific that which had theretofore been implicit.\nHuskins, J., took no i)art in the consideration or decision of this case.\nAppeal by plaintiffs from Bone, E.J., 20 March 1967 Session of Foesyth, docketed and argued at the Fall Term 1967 as Case No. 467.\nAction to recover damages against a vendor for failure to insert in a note, allegedly prepared under its direction, a provision that it was given \u201cfor purchase money of real estate\u201d as provided by G.S. 45-21.38.\nPlaintiffs\u2019 evidence tends to establish these facts: By warranty deed dated 18 March 1959, Parker\u2019s, Inc., conveyed to plaintiffs lot No. 58 of Lake Hills, a subdivision which defendant owned in For-syth County. The deed was signed by H. Bryce Parker, President (Parker), who owned all the stock in defendant corporation except two qualifying shares. Parker was an attomey-at-law, and the deed shows on its face that it was \u201cdrawn by H. Bryce Parker.\u201d The purchase price of the lot was $4,000.00. Defendant\u2019s realtor waived his $500.00 commission on the sale, and defendant credited plaintiffs with this amount as their down payment. The balance of $3,500 was arranged in the transaction hereinafter detailed.\nAt the time of the sale, Parker was guardian for George Patton Schimmeck, a minor (Schimmeck). Plaintiffs executed and delivered to Parker, as guardian of Schimmeck, a note for $3,500.00 dated 23 March 1959, which recited \u201ca good and valuable consideration, to-wit, a loan of money . . . secured by a deed of trust of even date herewith on valuable real estate.\u201d It was payable in three annual installments with interest at 6%. The deed of trust to Harvey A. Lupton, trustee for Parker, guardian for Schimmeck, covered lot No. 58 of Lake Hills, and recited that it secured a note \u201cfor loan of money.\u201d A notation on the deed of trust showed that it was \u201cdrafted by Parker and Lucas, by H. Bryce Parker.\u201d The deed and deed of trust were recorded simultaneously on 2 April 1959. The consideration for the note was a check dated 20 March 1959 in the amount of $3,500.00 drawn by Parker, guardian for Schimmeck, to. the order of plaintiffs. The check bore the notation, \u201ca loan.\u201d Plaintiffs endorsed this check and left it with Parker, who deposited it to their credit in the Wachovia Bank and Trust Company. They also drew and left with him their check, dated 27 March 1959, in the amount of $3,500.00, payable to Parker personally. Except for the note and deed of trust, the various instruments bear different dates. Each, however, was delivered at the same time as a part of a single transaction.\nWhen Parker died in October 1959, his associate in the practice of law, Phillip E. Lucas (Lucas), was appointed guardian for Schim-meck. At that time, no payment had been made on the note, and none was made thereafter. In consequence, Lucas called upon Lupton, trustee, to foreclose the deed of trust. The trustee sold the property at public auction 24 February 1961. After crediting the net proceeds of the sale, $1,751.64, on plaintiffs\u2019 note, Lucas brought suit against plaintiffs to recover the balance due on the note. At the 8 October 1962 Term of Forsyth, plaintiffs stipulated that they were \u201clegally indebted and obligated\u201d to Schimmeck in the amount of $2,180.96, and a consent judgment was entered against them for that amount, with interest from 22 March 1961. By periodic payments, plaintiffs thereafter satisfied the judgment in full. On 21 June 1963, they instituted this action to recover the amount paid on this judgment, \u201c$2,421.72, plus court costs and attorney\u2019s fees.\u201d\nIn addition to the basic facts detailed above, plaintiffs allege that in preparing the note and deed of trust, upon which Lucas secured the deficiency judgment against plaintiffs, Parker acted as the agent of defendant; that Parker failed to show in the instruments that \u201cthe same represented purchase money of real estate\u201d; that because of this omission, plaintiffs have sustained the loss for which they seek to recover. Answering, defendant denied that the note and deed of trust were given for the purchase price of land and alleged that plaintiffs are estopped to bring this action because (1) Parker, who failed to make the insertion, was also the guardian of Schim-meek; (2) plaintiffs confessed judgment in favor of Schimmeck instead of defending his action against them.\nUpon defendant\u2019s motion for a nonsuit, made at the conclusion of plaintiffs\u2019 evidence, Judge Bone entered a judgment dismissing the action.\nRoberts, Frye & Booth for 'plaintiff appellants.\nJenkins and Lucas and W. Scott Buck for defendant appellee." }, "file_name": "0256-01", "first_page_order": 274, "last_page_order": 282 }