Baushar v. Willis, 210 N.C. 52 (1936)

April 29, 1936 · Supreme Court of North Carolina

210 N.C. 52

JOHN S. BAUSHAR, Also Known as NIMER BAUSHAR ACHKAR, and KOWKAB BAUSHAR ACHKAR, His Wife, and FRED DAVID, Their Attorney in Fact, v. MRS. CAROLINE WILLIS, Administratrix of GEORGE T. WILLIS, Deceased, Trustee, and STEVE CONTOS.

(Filed 29 April, 1936.)

1. Appeal and Error J c — Findings of fact on plea in abatement will not be disturbed when supported by evidence.

The court’s findings of fact upon a plea in abatement on the ground of a prior action pending that the parties are not identical nor the actions substantially alike and bis denial of tbe plea upon bis findings will not be disturbed on appeal when tbe findings are supported by tbe record and evidence before bim.

2. Trial F a—

An exception to tbe issues submitted will not be sustained when tbe issues present tbe determinative questions involved and permit tbe presentation of all pertinent evidence.

3. Mortgages H p — Foreclosure held properly set aside for fraud and rights of parties adjusted upon verdict of jury in this case.

Plaintiff, tbe trustor in a deed of trust, instituted this action, claiming that defendant agreed to rent tbe property at a stipulated price and pay tbe rent to tbe cestui que trust so as to discharge tbe deed of trust, that defendant paid tbe debt but, instead of having tbe deed of trust canceled as agreed, bad tbe notes assigned to bim and procured foreclosure by tbe trustee. Defendant denied tbe allegations and set up claim for improvements and taxes paid. Held: Tbe evidence of fraud was sufficient to be submitted to the jury, and, in view of defendant’s claim for taxes and improvements, tbe jury was properly called upon to ascertain the entire amount of rents due, and upon tbe verdict of the jury in plaintiff’s favor, judgment was properly entered setting aside tbe foreclosure and adjusting tbe rights of tbe parties upon tbe several amounts found by tbe jury on the respective claims of tbe parties for rents, taxes, and improvements.

Appeal by defendant Steve Contos from Small, J., at November Term, 1935, of CkaveN.

No error.

This was an action to restrain the delivery of a deed by the trustee under power of sale in a deed of trust executed by the plaintiffs on a house and lot in the city of New Bern. Plaintiffs, who were the owners of the described property, executed, on 24 April, 1929, a deed of trust to George T. Willis, trustee, to secure payment of $500.00, evidenced by their note of even date with said deed of trust, said note being payable to Mrs. Lizzie Rahid. Plaintiff John S. Baushar leased said property to the defendant Steve Contos, who is a brother-in-law, at the agreed rental of $50.00 per month, upon the alleged agreement that out of the rents due by him defendant Contos should pay off said note and deed of trust, and pay taxes and repairs. At the time of the execution of said note and deed of trust the plaintiffs were residents of New Bern, North Carolina, but now reside in Lebanon, Syria.

Plaintiffs allege that the said Contos paid the note out of moneys due the plaintiffs, but, with intent to defraud the plaintiffs, caused said note to be transferred and assigned to himself instead of having same canceled of record, and requested the trustee to advertise and sell the property, and upon such sale became the purchaser and is now seeking to have deed therefor delivered to him by the trustee.

The defendant Contos denied all allegations of fraud, alleged that he paid full value for the note and had same transferred to himself, and that be bad expended large sums in improvements on tbe property, and asked that tbe restraining order be dissolved. And tbe defendant Oontos alleged further that at tbe time tbis action was begun there was an action pending in tbe Superior Court of Craven County between tbe same parties, involving tbe same cause of action about tbe same property. With respect to tbe plea in abatement contained in tbe answer, tbe court found certain facts and denied defendant’s plea of former action pending between tbe same parties.

Upon tbe trial in tbe Superior Court issues were submitted to tbe jury and answered as follows:

“1. Did Steve Oontos cause tbe note and deed of trust securing same, that was payable to Mrs. Lizzie Rabid, to be transferred and assigned to himself with intent to cheat and defraud John S. Baushar, as alleged in tbe complaint ? Answer: ‘Yes.’

“2. Did Steve Oontos procure tbe land secured by said deed of trust to be sold with tbe intent to cheat and defraud John S. Baushar, as alleged in tbe complaint? Answer: ‘Yes.’

“3. Is John S. Baushar tbe owner of and entitled to tbe immediate possession of tbe land and building described in tbe complaint? Answer : ‘Yes.’

“4. In what amount is Steve Oontos indebted to Iobn S. Baushar for tbe rents of said property? Answer: ‘$20.00 per month.’

“5. What amount, if any, is Steve Oontos entitled to recover of John S. Baushar for improvements made and taxes paid upon tbe premises described in tbe complaint? Answer: ‘$1,029.42.’

“6. What amount is Steve Oontos entitled to recover for amounts paid for and on tbe note? Answer: ‘$239.00,- with interest.’”

From judgment on tbe verdict tbe defendant Oontos appealed.

Greer & Greer and B. A. Nunn for plaintiffs.

D. H. Willis, Ward & Ward, and B. E. Whitehurst for defendant Gontos, appellant.

Devin, J.

The appealing defendant excepted to the denial of bis plea in abatement on the ground that there was another action pending between the same parties for the same cause.

This case was before this Court at the Fall Term, 1934, upon the defendant’s appeal from an order of the Superior Court continuing the restraining order to the bearing, and is reported in 207 N. C., 511. There it is said: “There is no finding that the prior action is for the same cause, and that they are substantially alike. Indeed, the two are apparently dissimilar.” Upon the trial in the court below Judge Small made certain findings and adjudged that the defendant’s plea of a former action pending between the same parties in interest over the same subject matter be denied. The findings of the judge upon the record and evidence before him and his conclusions will not be disturbed. Buchanan v. Clark, 164 N. C., 56; Assurance Society v. Lazarus, 207 N. C., 63. It appears that in the other action Albert Jowdy was plaintiff and Caroline H. Willis, administratrix, and Lizzie Rabid were defendants. Bowling v. Bank, 209 N. C., 463; Bank v. Broadhurst, 197 N. C., 365.

The defendant’s exception to the form of issues submitted cannot be sustained. These issues seem to present the determinative questions litigated so that they could be understood by the jury and all pertinent evidence presented. Potato Co. v. Jeanette, 174 N. C., 236.

Nor is there any reversible error in the portions .of the charge to which exceptions were taken. There was sufficient evidence to go to the jury on the allegation of fraud and intent to cheat and overreach the plaintiffs to their injury, and there is no sufficient reason to disturb their findings. The judgment was properly entered on the verdict adjusting the amounts found by the jury on the several issues. Nor was it error to ascertain the entire amount of rents due in connection with the defendant’s claim for improvements and taxes paid. King v. Bynum, 137 N. C., 491.

No error.