Virginia Trust Co. v. Dunlop ( 1938 )

Seawell, J.

On a motion to strike out, the test of relevancy of a pleading is the right of the pleader to present the facts to which the allegation relates in the evidence upon the trial. Pemberton v. Greensboro, 203 N. C., 514, 515, 166 S. E., 396; Patterson v. R. R., ante, 38, 43. If the defense provided in chapter 275, Public Laws 1933, is available to the defendants in this case, they are entitled to introduce evidence of the facts constituting such defense on the trial.

At this juncture of the case we are not able to agree with the plaintiff that the suggested defense is not available to defendants as executors of the guarantor of the notes upon which this suit is brought.

It might be contended, with reason, that a proper construction of the statute should regard the act of a mortgagee, or trustee, or holder of the notes secured by the mortgage, in acquiring the mortgaged premises at a foreclosure sale had at its instigation and for its benefit, as an act going to the discharge of the instrument and giving to the guarantor the benefit of this defense under the Negotiable Instruments Law- — C. S., 3101-3103. It would not be an unreasonable interpretation of the statute to hold that it proceeds upon the equitable assumption that the debtor has received payment in full when, by his own choice, he takes the land, and that the purpose of the law is, under such circumstances, to discharge the debt.

It is not, of course, for us to say whether the defendants can make good the allegations of their further defense: We only say that at this stage of the ease we do not deny their right to make it.

We are not sure of plaintiff’s right to appeal on this matter under 0. S., 638, since the same question could have been raised on objections to the evidence and, if necessary, reviewed on appeal from the final judgment, and it does not now appear that any substantial right has been affected. Pemberton v. Greensboro, supra. But since the holding is adverse to plaintiff’s contention, and the appeal has precedent, we prefer to decide the matter upon the merits.

The judgment denying the plaintiff’s motion is

Affirmed.