Chard v. . Warren

Citations

• 29 S.E. 373
• 122 N.C. 75
• 1898 N.C. LEXIS 196

Syllabus

<p>Action to Foreclose Deed of Trust — Referee’s Findings —Failure to Except to Findings of Ref eree — Practice— Payment and ¡Satisfaction — Parol Evidence to Explain Deed — Estoppel in Pais — Mortgage, Construction of Clause In.</p> <p>1. The finding of a referee as to a particular fact should be confirmed if not excepted to.</p> <p>2. Where an agreement between a debtor corporation and its creditors recited that the debt should be settled by the notes of a third person to be secured by a mortgage or deed of trust, and such notes so secured were executed, the debts of the corporation were thereby extinguished.</p> <p>8. Where, in an action to foreclose a mortgage, no answer or demurrer was filed, and no attempt was made to impeach the deed for fraud or mistake, or to reform it, and the deed clearly sets forth the names of the creditors, debtor, the amounts of the debts to be paid, the property conveyed as security, and the power of sale, and the method of application of the purchase money, parol evidence will not be allowed, on a motion to confirm the sale and to make the prescribed application, to explain the deed in any way.</p> <p>4. Creditors who claim under a deed of trust and file their claims to share in the proceeds of sale, cannot be heard to impeach its provisions.</p> <p>6. Where, in a deed of trust for creditors, the notes secured thereby were classified as “A” and B” notes, and it was provided that the proceeds from the sale of pine timber on the lands conveyed should be applied monthly, as it was cut, to the credit of certain of the “A” notes, but did not require the mortgagor should cut the timber and so apply the proceeds, and the deed provided that, in case of a sale of the land, the proceeds should be applied to the pro rata payment of all the “A” and “B” notes; Held that the stipulation was not a specific appropriation of all the pine timber on the land to payment of such “A” notes.</p>