Poston v. . Jones

Citations

• 29 S.E. 951
• 122 N.C. 536
• 1898 N.C. LEXIS 297

Syllabus

<p>Action to Foreclose Mortgage — Witness—Competency•—■ Evidence — Transaction with Deceased Person — Note — Payment — Evidence — Presumptive Evidence — Mortgage — Administrator.</p> <p>1. In the trial of an action to foreclose a mortgage which a deceased administrator had, during his lifetime, assigned to plaintiff as security for his note given in settlement of the balance due from him as administrator, the testimony of defendant that, after the execution of the mortgage, the administrator had agreed to take the mortgaged land in fee and defendant’s note for a small amount in settlement of the note secured by the mortgage, was incompetent under Section 590 of The Code.</p> <p>2. While the unexplained possession of a note by the maker is presumptive evidence of its payment, yet, where there was no claim of payment, except under an agreement that was inoperative, the rejection of the note as evidence of its payment was harmless error.</p> <p>3. A conveyance of land which provides for are conveyance to the grantor, if the latter shall within a certain time pay to the grantee the consideration named in the instrument, is a mortgage.</p> <p>4. A mortgage cannot, by any stipulation between the parties thereto, be changed to an absolute deed. “Once a mortgage, always a mortgage.”</p> <p>5. An administrator has no right to take land in payment of a debt due to the estate.</p> <p>6. A debtor 'to a trustee has no right to pay the trust debt by a conveyance of land to such trustee.</p> <p>7. In an action on a note and a mortgage assigned as security for such note, it was error to render judgment against the security for more than was due on the principal debt.</p>