Parham v. Morgan, 206 N.C. 201 (1934)

Feb. 28, 1934 · Supreme Court of North Carolina

206 N.C. 201

T. DAVID PARHAM v. JOHN H. MORGAN and His Wife, CORA MORGAN, H. S. STANBACK, Trustee, HATTIE B. YOUNG, CAROLINA BUILDING AND LOAN ASSOCIATION and D. S. BOYKIN, Trustee.

(Filed 28 February, 1934.)

(For digest see Parham v. Hinnant, ante, 200.)

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

Appeal dismissed.

Tlie plaintiff is tbe bolder of a note wbicb was executed by tbe defendants John TI. Morgan and bis wife Cora Morgan, and is secured by a deed of trust executed by tbe said defendants to tbe defendant H. S. Stanback, trustee. Tbe land conveyed by said deed of trust is situate in Wilson County. Tbe deed of trust was duly recorded in tbe office of tbe register of deeds of said county.

Tbe note secured by tbe deed of trust is dated 2 January, 1925, and was payable to tbe order of tbe Commercial Bank of Wilson, on 8 January, 1926. The plaintiff purchased said note on 8 November, 1930, from North Carolina Mutual Life Insurance Company of Durham, N. C., to whom tbe said note was negotiated by tbe payee on 23 June, 1927.

On 25 January, 1928, tbe defendants John H. Morgan and bis wife, Cora Morgan, paid to tbe defendant H. S. Stanback, trustee, who was also cashier of tbe Commercial Bank, payee of said note, tbe amount due thereon, taking from said trustee, bis receipt for said amount. On tbe same day, without tbe knowledge of tbe bolder of said note at said date, tbe defendant H. S. Stanback, trustee, entered on tbe records in tbe office of tbe register of deeds of Wilson County, a cancellation of said deed of trust, C. S., 2594(1).

Tbe defendant Hattie B. Young is now tbe owner of tbe land described in tbe deed of trust, subject to a deed of trust executed by tbe defendants John H. Morgan and bis wife, Cora Morgan, to tbe defendant D. S. Boykin, trustee, to secure a note payable to tbe order of tbe defendant Carolina Building and Loan Association. Both tbe deed under wbicb tbe defendant Hattie B. Young claims title to said land, and tbe deed of trust to tbe defendant D. S. Boykin, trustee, were executed and recorded subsequent to tbe cancellation of tbe deed of trust by wbicb tbe note held by tbe plaintiff is secured. Both tbe defendants, Hattie B. Young, and D. S. Boykin, trustee, are purchasers for value of tbe land described in said deed of trust, without notice of any invalidity in tbe cancellation, appearing on tbe record in tbe office of tbe register of deeds, of tbe deed of trust by H. S. Stanback, trustee.

This is an action for judgment that tbe cancellation of tbe deed of trust by wbicb tbe note held by plaintiff is secured is null and void as against tbe plaintiff.

When tbe action was called for trial at tbe 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 his counsel appeared and moved tbe court to set aside tbe judgment of nonsuit, and to reinstate tbe action on tbe docket for suit. On its findings of fact, tbe court concluded tbat plaintiff’s cause of action was not meritorious, and denied tbe motion. Plaintiff appealed to tbe Supreme Court.

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

Finch, Band & Finch and David D. Isear for defendants.

PeR CtteiaM.

Tbe motion of tbe plaintiff tbat 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 tbat reason tbe order denying tbe motion is not reviewable by tbis Court. Tbe appeal must be dismissed.

Tbe plaintiff did not except to tbe findings of fact on which tbe court concluded tbat 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 tbis Court. See Parham v. Hinnant, ante, 200.

Appeal dismissed.