Parham v. Hinnant, 206 N.C. 200 (1934)

Feb. 28, 1934 · Supreme Court of North Carolina

206 N.C. 200

T. DAVID PARHAM v. W. R. HINNANT and His Wife, SALLIE HINNANT, H. S. STANBACK, Trustee, and MRS. M. C. PERRY.

(Filed 28 February, 1934.)

1. Appeal and Error >T b — Motion to reinstate cause on docket after non-suit for failure to appear is addressed to discretion of court.

After judgment of nonsuit has been entered for plaintiff’s failure to appear when the action is called for trial, a motion to reinstate the action on the docket, made by plaintiff later on the same day the case was called for trial, is addressed to the discretion of the court, and the court’s order denying the motion is not appealable.

2. Mortgages G c — Power of trustee to cancel deed of trust without knowledge of cestui que trust.

The. trustor paid trustee the amount of the mortgage debt and the trustee entered a cancellation of the deed of trust on the records, C. S., 2594(1), without the knowledge of the cestui que trust. Thereafter trustor sold the property to a bona fide purchaser for value. The cestui que trust brought action to have the cancellation declared null and void. Held, upon the facts found by the trial court, unexcepted to by plaintiff, the court’s conclusion upon a motion to reinstate the case after nonsuit by default, that plaintiff’s cause of action was without merit is held in accord with the decisions.

Appeal by plaintiff from Barnhill, J., at November Term, 1933, of WilsoN.

Appeal dismissed.

Tbe plaintiff is the holder of a note which was executed by the defendants W. B. Hinnant and his wife, Sallie Hinnant, and secured by a deed of trust executed by said defendants to the defendant, H. S. Stanback, trustee. The land convoyed by said deed of trust is situate in Wilson County. The deed of trust was duly recorded in the office of the register of deeds of said county.

The note secured by the deed of trust is dated 9 May, 1924, and was payable to the order of the Commercial Bank of Wilson on 1 November, 1924. The plaintiff purchased the said note from the North Carolina Mutual Life Insurance Company of Durham, N. C., to whom the said note had been negotiated by the payee on 23 June, 1927.

On 14 January, 1928, the defendants W. B. Hinnant and his wife, Sallie Hinnant, paid to the defendant H. S. Stanback, trustee, who was the cashier of the Commercial Bank, the payee, the amount due on said note, taking from said trustee his receipt for said amount. On 18 January, 1928, the defendant H. S. Stanback, trustee, without the knowledge of the holder of said note at said date, entered on the record in the office of the register of deeds of Wilson County, a cancellation of said deed of trust, O. S., 2594(1).

The defendant Mrs. M. O. Perry is now the owner of the land described in the deed of trust, claiming title thereto under a deed executed by tbe defendants W. R. Hinnant and bis wife, Sallie Hinnant, subsequent to tbe cancellation of tbe deed of trust by tbe defendant H. S. Stanback, trustee. Mrs. M. C. Perry is a purchaser for value of said land, without notice of any invalidity in tbe cancellation of tbe deed of trust securing tbe note held by tbe plaintiff, as shown by tbe record.

This action is for judgment that tbe cancellation of tbe deed of trust appearing in tbe record in tbe office of tbe register of deeds of Wilson County is null and void as against tbe plaintiff.

When tbe action was called for trial at November Term, 1933, of tbe Superior Court, tbe plaintiff failed to appear in person or by counsel to prosecute tbe same. After tbe plaintiff bad been duly called, and bad failed to appear and prosecute bis action, tbe action was nonsuited.

Thereafter, on tbe same day, tbe plaintiff and bis counsel appeared and moved tbe court to set aside tbe judgment of nonsuit, and to reinstate tbe action for trial. On its findings of fact, tbe court concluded that plaintiff’s cause of action is not meritorious, and denied tbe motion. Plaintiff appealed to tbe Supreme Court.

M. Hugh Thompson and E. J. Gates for plaintiff.

Finch, Rand & Finch and David W. Isear for defendants.

Pee Cueiam.

Tbe motion of tbe plaintiff that tbe judgment of non-suit be set aside, and tbe action be reinstated on tbe docket for trial, was addressed to tbe discretion of tbe court. For that reason, tbe order denying tbe motion is not reviewable by this Court. Tbe appeal from said order must be dismissed.

Tbe plaintiff did not except to tbe findings of fact on which tbe court concluded that plaintiff’s cause of action is without merit. On these findings, tbe conclusion of tbe court was correct, and is in accord with authoritative decisions of this Court. See Guano Co. v. Walston, 187 N. C., 667, 122 S. E., 663; Bank v. Sauls, 183 N. C., 165, 110 S. E., 865.

Appeal dismissed. ■