Bateman v. Hopkins, 161 N.C. 220 (1912)

Dec. 14, 1912 · Supreme Court of North Carolina

161 N.C. 220

W. E. BATEMAN v. E. B. HOPKINS.

(Filed 14 December, 1912.)

Appeal and Error — Contracts—Interest—Writ of Possession — Supreme Court — Motions—Cost—Practice.

It having been determined on a former appeal in this case that under the contract entered into between the parties that the plaintiff should pay a certain sum of money into the Superior Court and defendant cancel certain outstanding notes and mortgages against the plaintiff’s property, it is Held, that the defendant is not entitled to interest on the outstanding notes he has paid; and a decree is entered in the Supreme Court that the defendant immediately execute and deliver to plaintiff a deed of general warranty to the lands described in the complaint, and that after twenty days a writ of possession issue from, the Superior Court; that defendant pay costs incident to his motion.

Appeal by defendant from Webb, J., at Spring Term, 1912, of TYRRELL.

Tbis is a motion by tbe plaintiff, after notice, for a decree commanding tbe defendant to execute a deed to him witb general warranty, for tbe land described in tbe complaint, and for a writ of possession.

After tbe last opinion was filed in tbis case, tbe plaintiff paid $1,000 into tbe office of tbe Clerk of tbe Superior Court of Tyr-rell County, and tbe notes to J. C. Meekins, Sr., bave been surrendered and tbe mortgage executed to secure tbe same bas been canceled of record.

Tbe defendant resists tbe motion upon tbe sole ground tbat, pending tbis litigation, be bas paid'interest to J. C. Meekins, Sr., amounting to $600, and insists tbat tbe plaintiff should be required to pay bim tbis sum.

Per, Curiam.

Tbe plaintiff is entitled to tbe decree be demands. Tbe contract between tbe plaintiff and defendant was to pay tbe defendant $1,000 and to release tbe lands from tbe mortgage to J. C. Meekins, Sr., and tbe contract bas been fully performed. Tbe last appeal of tbe defendant was based on tbis contention. He tben said tbat tbe plaintiff bad not agreed to pay any certain amount, except as to $1,000, but tbat be bad agreed to satisfy tbe mortgage, and bis view prevailed in tbis Court.

Tbe sum of $600 paid as interest was upon a debt be owed, and was not induced by any request or conduct of tbe plaintiff.

Let tbe decree be entered. Tbe cause is retained.

DECREE.

Tbe plaintiff, after due notice to tbe defendant, moves tbe Court for a decree commanding tbe defendant to execute a deed to him with general warranty, and for a writ of possession, and it appearing’ to the satisfaction of the Court that since the opinion was filed in this action, that the plaintiff has paid into the clerk’s office in Tyrrell County the sum of $1,000 for the use of the defendant, and has also marked “Satisfied” the notes referred to in the pleadings, due to J. C. Meekins, Sr., and has caused to be canceled of record the mortgage or trust deed securing the payment -of said notes, and has otherwise fully complied with the judgment of this Court, it is now ordered, adjudged, and decreed that the defendant, E. B. Hopkins, immediately execute and deliver to the plaintiff a deed with general warranty conveying to him in fee simple the lands described in the complaint in this action.

It is further adjudged and decreed that, upon application of the plaintiff, the clerk of this Court issue a writ, directed to the Sheriff of Tyrrell County, requiring him to put the defendant out of possession of said lands and to put the plaintiff in possession thereof, but that this writ shall not issue in less than twenty days from this 18 December, 1912.

It is further ordered that the defendant pay the costs of this motion.

The clerk of this Court will certify a copy of this judgment to the Superior Court of Tyrrell County at once, in order that a copy of the same may be served upon the defendant, and that it may be entered upon the records of the Superior Court of said county.