Collins v. Combs

BROCK, Chief Judge.

The issues submitted to the jury do not dispose of the crucial issue of which defendant is entitled to recover from the plaintiffs upon the $15,500.00 note. It would seem that this note, secured by the deed of trust, either was given in payment of the contract price of the residence (excepting the separate $400.00 contract for the carport) or was not supported by consideration. Yet the issues submitted and the judgment .entered thereon permit the deed of trust, which secures the $15,500.00 note, to remain a valid lien on plaintiffs’ property and, at the same time, give judgment against plaintiffs for $15,900.00. The note and deed of trust are held by the intervenor, North Carolina National Bank, and the judgment is in favor of Virginia-Carolina Builders, Inc. Under the judgment entered, the lien of the deed of trust is in addition to the lien of the judgment. They total $31,400.00. Two liens are not supported by any view of the pleadings or evidence, and there is no provision for the payment of one to constitute satisfaction of the other. Also, the jury’s answer to the fifth issue awarding $15,900.00 to defendant Builders, Inc., “providing the house is brought up to specifications,” is impossible of enforcement and should not have been accepted.

For these reasons, among others, the judgment must be vacated, the verdict set aside, and a new trial ordered.

New trial.

Judges Hedrick and Martin concur.