Williams v. Blue Ridge Building & Loan Ass'n, 209 N.C. 845 (1936)

Feb. 26, 1936 · Supreme Court of North Carolina

209 N.C. 845

ELIZA WILLIAMS and Husband, L. W. WILLIAMS, v. BLUE RIDGE BUILDING & LOAN ASSOCIATION and A. W. BURNS, JR., Liquidating Agent for the CENTRAL BANK AND TRUST COMPANY.

(Filed 26 February, 1936.)

Appeal by tbe plaintiffs from Oglesby, J., at August Term, 1935, of Buncombe.

Modified and affirmed.

Tbis was a civil action, instituted by tbe plaintiffs, to restrain a sale under a certain recorded deed of trust, signed and purporting' to be duly acknowledged before a notary public by tbe plaintiffs, to tbe Central Bank and Trust Company, as trustee, to secure an indebtedness of $7,000, and interest, to tbe Blue Ridge Building and Loan Association. Edwin Ray, receiver of tbe Blue Ridge Building and Loan Association, by consent, was made a party defendant in tbis Court. Tbis case was bere on a former appeal, 207 N. C., 362.

It is alleged in tbe complaint tbat, while tbe feme plaintiff signed tbe deed of trust, she never appeared before tbe notary public whose name is affixed to tbe certificate, and never, separately and apart from her husband, assented thereto. Tbis allegation is denied in tbe answer. Tbe case was submitted to tbe jury upon tbe following issue:

“1. Did tbe notary public, Fenton H. Harris, take tbe private examination of Eliza Williams touching her voluntary execution of tbe deed of trust dated 11 December, 1929, securing tbe sum of $7,000 recorded in Deed of Trust Book 305, page 292?” Upon tbe issue being answered in tbe affirmative, judgment was entered for tbe defendants, and tbe plaintiffs appealed, assigning errors.

Pritchard ■& J ames for plaintiffs, appellants.

R. M. Wells and Smathers, Martin & McOoy for defendants, appellees.

Per Curiam.

We have examined tbe exceptive assignments of error, both to tbe rulings upon tbe evidence and to tbe charge, and find no reversible error therein. Tbe charge is in compliance with tbe opinion in tbis case when before tbis Court on former appeal.

However, in paragraph 6 of tbe judgment it is ordered tbat tbe defendants recover of tbe plaintiffs “tbe sum of $400.00, to be discharged by tbe payment to said defendants of a sum equal to $25.00 per month, calculated from 12 October, 1933, until paid, and tbe same to be calculated to tbe day of payment.” It is conceded in tbe brief of tbe appellees tbat tbis provision of tbe judgment has no basis in either allegation or proof. Such provision was erroneously inserted and must be stricken from the judgment.

Paragraph 6 of the judgment should be stricken therefrom and the remaining provisions affirmed, and to that end the case is remanded to the Superior Court that judgment may be modified accordingly.

Modified and affirmed.