Moore v. Brinkley, 200 N.C. 457 (1931)

March 11, 1931 · Supreme Court of North Carolina

200 N.C. 457

MARION MOORE, Administrator of MRS. SUSAN BELL, v. W. R. BRINKLEY and Wife, LILLIE E. BRINKLEY.

(Filed 11 March, 1931.)

1. Wills B a — Agreement that upon death of obligee the obligor was to be released from liability on note is valid.

A written agreement made with consideration contemporaneously with the execution and delivery of notes secured by a mortgage, that the obligor be absolutely released as to the obligee or her estate upon her death is valid.

2. Appeal and Error J c — Findings of fact supported by evidence are conclusive on appeal.

The referee’s findings of fact supported by evidence and approved by the trial court are conclusive on appeal to' the Supreme Court.

Appeal by plaintiff from Lyon, Emergency Judge, at November Term, 1930, of Lenoie.

Affirmed.

This action to recover on notes executed by tbe defendants, and payable to plaintiff’s intestate, and for tbe foreclosure of tbe mortgage securing tbe payment of said notes, was beard on tbe report of tbe referee.

Tbe findings of fact and conclusions of law made by tbe referee were adverse to tbe contentions of tbe plaintiff.

Plaintiff’s exceptions to certain findings of fact and conclusions of law made by tbe referee were not sustained by tbe trial judge. Tbe report of tbe referee was confirmed in all respects.

From judgment in accordance witb tbe report of tbe referee, plaintiff appealed to tbe Supreme Court.

Rouse & Rouse for plaintiff.

Button & Greene and Shaw & J ones for defendants.

Pek Cueiam.

All tbe findings of fact made' by tbe referee were supported by evidence introduced at tbe bearing before bim. There was, therefore, no error in tbe refusal of tbe trial judge to sustain plaintiff’s exceptions to tbe findings of fact. Kenney v. Hotel Co., 194 N. C., 44, 138 S. E., 349.

Nor was there error in tbe refusal of tbe trial judge to sustain plaintiff’s exceptions to tbe referee’s conclusions of law. Plaintiff’s intestate, contemporaneously witb tbe execution by defendants of tbe notes and mortgage involved in this action, for a valuable consideration, contracted and agreed witb tbe defendants that at her death tbe defendants should be absolutely released from any and all their indebtedness to her, or to her estate. Tbis contract is valid and enforceable against tbe plaintiff. Fawcett v. Fawcett, 191 N. C., 679, 132 S. E., 796. By tbe terms of tbis contract defendants are now tbe owners of tbe notes secured by tbe mortgage, certainly as against tbe plaintiff.

We find no error in tbe judgment. It is Affirmed.