Howell v. . Cloman , 117 N.C. 77 ( 1895 )

It is admitted that when the defendants signed the mortgage it secured only $500, and that in that condition the (78) defendant, J. B. Cloman carried it to the plaintiff's store. The plaintiffs' witnesses testify that it was then and there changed to $1,000, and the husband defendant says it was not so changed when he acknowledged the deed for probate. His wife testified that she examined and read the mortgage at the time she acknowledged it for probate and registration, and that it had not been changed. This conflicting evidence was submitted to the jury, and they rendered a verdict for the plaintiffs upon the issue submitted, to-wit: "Is the mortgage and crop lien for $1,000, dated 27 July, 1891, and probated 9 September, 1891, the deed of the defendants?" Answered, "Yes." The defendants tendered an issue, but his Honor submitted only the one above, which was sufficient to meet the contention. His Honor charged the jury that, the change being admitted, the burden was on the plaintiffs to satisfy them that such change was made with the consent of defendants, or was known and approved by them at or before the acknowledgment for probate and registration. He also instructed them fully how to answer the issue according to their finding on the evidence. His instruction was sufficient and was the substance of that asked for by the defendants on the real contention.

The main insistence of the defendants was that there was no evidence of the knowledge or approval of the change, on the part of the defendants, proper for the jury to consider. We think there was. The feme defendant admits that she read and examined the deed when she acknowledged it for probate. There must be some evidence in that admission that she knew the contents, and the jury so find.

No error.

Cited: Wicker v. Jones, 159 N.C. 111.

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