Robinson v. . Sampson , 121 N.C. 99 ( 1897 )

The petition alleged that the estate was indebted in about the sum of $200.

The second and third paragraphs of the answer were as follows:

"2. That they are informed and believe that the whole of the indebtedness of the estate of Needham Kennedy, except the charges of administration, consists of $150, alleged to be due Martha Ann Sampson, widow of Needham Kennedy; that said indebtedness to Martha A. Sampson has been partially paid and discharged, according to their best recollection and belief, and they respectfully demand that the following issue be submitted to a jury, to-wit:

"What amount, if any, is the estate of Needham Kennedy indebted to Martha Ann Sampson?

"3. That they have no information, sufficient to form a belief, of the amount of the charges of the administration, and therefore deny the same."

The following was the issue certified to the Superior Court in (100) term, for trial, and agreed to by both parties, and upon which it was tried:

"What amount, if anything, has been paid on the debt of $150 due Martha Ann Sampson?"

It was admitted that said debt of $150 consisted, in part, of a mortgage given by Needham Kennedy and wife to W. C. Munroe, and another which the said Martha Ann Sampson alleged she had paid off with her own money.

The defendants offered in evidence said mortgage and the entry, "Satisfied," on the margin of the record, which entry was signed by the mortgagee and witnessed by the register of deeds.

(Objected to by plaintiff. Objection sustained, and defendants, other than Martha Ann Sampson, excepted.)

No other evidence was offered. The jury, under the instruction of the court, answered the issue, "Nothing," to which defendants (except Martha Ann Sampson) excepted and appealed from the judgment rendered thereon. It is competent to introduce as evidence of payment of an indebtedness secured by mortgage the entry of "Satisfied" on the margin of the record, signed by the mortgagee and witnessed by the register of deeds. The Code, sec. 1271. Prima facie satisfaction of the mortgage is that of the debt secured thereby, subject to evidence of an agreement to the contrary. Burke v. Snell, 42 Arkansas, 57; Chappell v. Allen, 43 Missouri, 213; Fleming v. Parry, 24 Pa. St., 47. But the plaintiff contends that on an issue, "What amount, if any, has been paid on the debt of $150 due Martha Ann Sampson?" it is irrelevant to show that she created part of that debt by paying off a mortgage due plaintiff's (101) intestate. On the form of the issue this is apparent. We infer that the object of the defendant was to deny part of the indebtedness by showing that it was a mere voluntary and officious payment by Martha Ann Sampson of a mortgage indebtedness of her husband, the plaintiff's intestate, and therefore not an indebtedness of the estate (Meadows v. Smith, 34 N.C. 18); and the appellant's brief points out that in the answer filed before the clerk the issue asked for was, "What amount, if any, is the estate of Kennedy indebted to Martha Ann Sampson?" — an issue which would have made the rejected evidence relevant. But the issue in its present form was settled by the clerk and certified up to the Superior Court at term, without objection, and his Honor was not asked to correct or amend it, as he might have done. Faison v. Williams, post, 152. It is true that the issues arise upon the pleadings, but a defect in the issue cannot be assigned here when not excepted to below.Wills v. Fisher, 112 N.C. 529; Moore v. Hill, 85 N.C. 218; Alexander v.Robinson, ib., 275, and cases cited in Clark's Code, secs. 392, 395.

No error.

Cited: McCall v. Galloway, 162 N.C. 354.