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.