Roberts v. Davis, 200 N.C. 424 (1931)

March 4, 1931 · Supreme Court of North Carolina

200 N.C. 424

W. L. ROBERTS v. CHAS. DAVIS and MRS. MARY MOORE.

(Filed 4 March, 1931.)

1. Appeal and Error F l> — Exceptions to charge must he specific in order to he considered on appeal.

In order for a charge of the court to the jury to be considered on appeal the appellant’s exception must be specific in pointing out the supposed error and not merely a “broadside” exception, as in this case “defendant excepts to the charge of the court.”

2. Trial E e — Where party desires specific instructions he should make written request therefor.

Where the complaining party is not satisfied with an instruction by the court to the jury as being sufficiently specific, and the instruction is substantially correct as to the law, his remedy is by offering a prayer for instructions in accordance with his view on the subject.

Appeal by defendant, Mrs. Mary Moore, from Lyon, Emergency Judge, and a jury, at November Term, 1930, of JohNSTON.

No error.

Succinctly: Plaintiff contended that on or about 22 December, 1919, Chas. Davis owned certain property in Smithfield, Johnston County, N. C,, and sold same at public auction, and O. I. Pierce, Geo. T. Pool and he ("W. L. Roberts) became the last and highest bidders for said land, in the sum of $9,125. That the deed was made by Chas. Davis to C. I. Pierce, trustee for C. I. Pierce, Geo. T. Poole and ~W. L. Roberts, dated 22 December, 1919, and duly recorded in Book 66, page 392, register of deeds office for said county. The consideration stated in this deed is $9,725. That he paid his part of the purchase money for the land.

Mrs. Mary Moore, the defendant, in her answer, among other things, says that C. I. Pierce and Geo. T. Poole made a mortgage on said land to Chas. Davis for $7,293.75 which was duly recorded. “The said Chas. Davis, on or about 4 January, 1922, instituted in the Superior Court of Johnston County foreclosure proceedings against the administrators of Geo. T. Poole, who was then deceased, and 0. I. Pierce, and subsequently obtained an order of ihe Superior Court for the sale of said lands under and by virtue of said mortgage and a commissioner of the court was appointed to conduct the sale and execute a deed to the purchaser ; that, on 18 May, 1925, after due advertisement, the commissioner sold said lands and this defendant became the last and highest bidder for same at the price of $3,465, and on 11 June, 1925, complied with the terms of said sale, paid the purchase price, and on 25 June, 1929, received a deed from E. F. "Ward, commissioner, and promptly recorded the same.”

Further: “That said C. I. Pierce was trustee for Geo. T. Poole and O. I. Pierce only, and was not trastee in any sense for W. L. Roberts; that the said TV". L. Roberts had and now has no interest in and to said property, and the said C. I. Pierce was never, in fact, trustee for said ~W. L. Roberts; that it was recited in said deed that C. I. Pierce was trustee for Geo-. T. Poole, C. I. Pierce and ~W. L. Roberts by the mutual mistake of said parties; that prior to the execution of said deed the said ~W. L. Roberts had failed and neglected to pay his part of the cash payment, and on the date of the execution of said deed failed and neglected to secure the deferred payments in accordance with the agreement made and entered into at the time of sale of said property by the defendants, Charles Davis and said purchasers; that he never put one penny in said property, either before the making of said deed at the time of its delivery or subsequent thereto and has no beneficial interest in the same.”

Tbe issues submitted to tbe jury and tbeir answers thereto were as follows:

“1. Was tbe name of W. L. Roberts included in tbe deed executed by Cbas. Davis on 22 December, 1919, by mistake, as alleged in tbe answer? Answer: No.

' 2. Wbat sum of money, if any, did tbe plaintiff pay upon tbe purchase price of tbe property described in tbe complaint? Answer: $3,241.66.

3. Are tbe parties hereto tbe owners and tenants in common of tbe land, as alleged in tbe complaint? Answer: Yes.”

Tbe court below rendered judgment for plaintiff on tbe verdict. Tbe defendant, Mrs. Mary Moore, made numerous assignments of error and appealed to tbe Supreme Court.

Winfield K. Lyon for plaintiff.

E. J. Wellons and W. L. Whitley for defendant, Mrs. Mary Moore.

Per OueiaM.

Tbe record discloses that exception to tbe charge was as follows: “Defendants except to tbe charge of the court.” This is not specific.

In Rawls v. Lupton, 193 N. C., at p. 430, speaking to tbe subject, citing numerous authorities: “Errors must be specifically assigned. An ‘unpointed, broadside’ exception to tbe ‘charge as given’ will not be considered. McKinnon v. Morrison, 104 N. C., 354. Exception to tbe charge of tbe court in general terms, not sufficiently specific to call tbe attention of tbe court to tbe particular point claimed to be erroneous, cannot be considered by an appellate court.”

In Cecil v. Lumber Co., 197 N. C., at p. 82, is tbe following: “Tbe assignments of error, appearing on tbe present record, are not sufficiently definite to enable tbe court to understand wbat questions are sought to be presented, without a voyage of discovery through tbe record. Sturtevant v. Cotton Mills, 171 N. C., 119, 87 S. E., 992. Hence, tbe motion of plaintiffs to dismiss tbe appeal and to affirm tbe judgment for failure to comply with Rule 19, section 3, would seem to be well founded. Porter v. Lumber Co., 164 N. C., 396, 80 S. E., 443.”

Notwithstanding tbe assignment of error that tbe charge of tbe court below is not properly presented on tbe record, we have examined tbe portion ofi tbe charge pointed out on tbe argument in this Court as error, but can see no prejudicial or reversible error. Tbe charge of tbe court below, as pointed out on tbe argument as error made by tbe court below, ■we think on tbe facts substantially correct. If defendant bad wanted a charge more specific, a prayer should have been requested. On tbe whole record we can see no error. By an examination of tbe records in tbe office of tbe register of deeds it appears that defendant, before she purchased, could have discovered the title of plaintiff to one-third interest in the land. It may be hard measure on the defendant, Mrs. Mary Moore, but, as there is no error in law, we have nothing to do with the findings of fact; that is for the jury to determine. The jury found the disputed facts for plaintiff. •

No error.