Byrd v. . Waldrop

The plaintiff executed a mortgage on described land to Mrs. Louisa Wall to secure an indebtedness, evidenced by six notes payable to Mrs. Wall. This was in November, 1927. Two years later defendant Waldrop advised plaintiff that he was then the owner and holder of the unpaid notes and demanded payment. The plaintiff, unable to do so, conveyed the land to defendant Waldrop, pursuant to an alleged agreement between them. Subsequently, the mortgage was canceled of record. On 22 December, 1933, defendant Waldrop executed a deed for the land to Frank Bright, the deed (which appears in the record on appeal filed by plaintiff) reciting a valuable consideration. There was no allegation that defendant Bright had notice of any equity between plaintiff and defendant Waldrop, nor was there allegation of want of consideration for the deed to Bright.

The demurrer admits the relevant facts pleaded (Ramsey v. Furniture Co.,209 N.C. 165), but not the pleader's conclusions of law. McIntosh Prac. Proc., sec. 445; Board of Health v. Comrs., 173 N.C. 250; Lane v. GrahamCounty, 194 N.C. 723. The complaint is sufficient as against the defendant Waldrop, but does not allege sufficient facts to make out a case for the cancellation of the deed as against defendant Bright. On the contrary, it would seem that the record title was clear at the time of the conveyance to Bright, and there are no allegations of notice or of want of consideration so as to invalidate the deed.

While a conveyance by a mortgagee ordinarily leaves his grantee in the same condition as himself, this salutary rule has no application where the mortgage has been canceled on the record, and where the conveyance was made by one not appearing of record as mortgagee, to one who purchases for value and without notice. Cole v. Boyd, 175 N.C. 555; Lockridge v. Smith,206 N.C. 174; Bailey v. Stokes, 208 N.C. 114.

There was no error in sustaining the demurrer on the part of defendant Bright; this, however, without prejudice to right of plaintiff to amend her complaint if so advised. C. S., 546.

Affirmed.