Matter of Cooke

246 S.E.2d 801 (1978)

In the Matter of the Foreclosure of a Deed of Trust Executed by Juan C. COOKE, dated April 12, 1967, Recorded in Book of Mortgages 806, page 334, Durham County Registry, A. A. McDonald, Jr., Substitute Trustee.

No. 7714SC767.

Court of Appeals of North Carolina.

August 15, 1978.

*803 Joe C. Weatherspoon, Durham, for petitioner-appellee.

Roger S. Upchurch, Durham, for respondent-appellant.

MORRIS, Judge.

Respondent objected to the testimony of the payees/beneficiaries concerning *804 the notes and transactions as being violative of the Dead Man's Statute, G.S. 8-51. The maker of the notes and grantor of the deed of trust is now deceased. G.S. 8-51 provides that

"Upon . . . the hearing upon the merits of a special proceeding, a party or person interested in the event, . . . shall not be examined as a witness in his own behalf or interest, . . . against the executor, administrator or survivor of a deceased person, . . . concerning a personal transaction or communication between the witness and the deceased person . . .."

The testimony of Robert Carpenter, to which respondent objected, concerning the note to him and the failure of the deceased to pay the same when due should have been excluded. The Dead Man's Statute is clearly applicable to the testimony of a payee of a promissory note. McGowan v. Beach, 242 N.C. 73, 86 S.E.2d 763 (1955); see also Perry v. Trust Co., 226 N.C. 667, 40 S.E.2d 116 (1946). The trial court's error in admitting this testimony does not, however, warrant reversal.

There was sufficient evidence of execution and delivery in the testimony of the witness Sylvia Clayton. The notes and deed of trust were before the court. The introduction of the past due notes along with evidence of their execution and delivery would make out, in an action upon the notes, a prima facie case for the entire amount of the notes. Royster v. Hancock, 235 N.C. 110, 69 S.E.2d 29 (1952); see also Whitley v. Redden, 276 N.C. 263, 171 S.E.2d 894 (1970).

The same evidence, absent any evidence to the contrary, is sufficient to support a finding that the payee/possessor is the holder of a valid debt and that the debtor has defaulted. Similarly, the deed of trust was before the court and there was independent evidence, through Sylvia Clayton, of its execution and delivery. That deed of trust provides that, upon default, the trustee "shall . . . sell any or all of said land at public auction . . .." Thus, even disregarding Robert Carpenter's testimony, there was other evidence of the same facts to which he testified sufficient to support the trial court's findings of fact. Where both competent and incompetent evidence is before the trial court, we assume that the trial court, when functioning as the finder of facts, relied solely upon the competent evidence and disregarded the incompetent evidence. Anderson v. Insurance Co., 266 N.C. 309, 145 S.E.2d 845 (1966). Therefore, respondent's assignment of error No. 1 does not warrant reversal.

Respondents tendered to the court a "proposed order", moved the court to sign that order, excepted to the denial of that motion, and assigned as error the court's failure to make the findings of fact it contained. Respondents also excepted to the signing of the order proposed by petitioner. This exception is the basis for their assignment of error to the findings of fact contained in the order.

Respondents argue that there is not sufficient evidence to support the required finding that Robert Carpenter and Edith Carpenter are holders of a valid debt. First, is there sufficient competent evidence of a valid debt? As we have previously noted, introduction of a promissory note along with evidence of execution and delivery makes out a prima facie case for the entire amount of the note in an action on a promissory note. Royster v. Hancock, supra. That same quantum of evidence, in the absence of probative evidence to the contrary, will support the finding of a valid debt in a proceeding to foreclose under a power of sale. Respondents, also, contend that there cannot be a "valid" debt absent consideration. We take no position as to this general proposition, but we note that the word "seal" beside the maker's signature is legally sufficient to function as a seal, and, in the absence of proof by respondents that the maker did not adopt it as her seal, by law it is her seal. McGowan v. Beach, supra. A seal creates a presumption of consideration, Trust Co. v. Smith Crossroads, Inc., 258 N.C. 696, 129 S.E.2d 116 (1963). Therefore, even if consideration were necessary, there is evidence to support a finding thereof.

*805 Next, is there sufficient competent evidence that Robert and Edith Carpenter are the holders of the notes? G.S. 25-1-201(20) defines a "holder" as "a person who is in possession of . . . an instrument . . . drawn, issued or endorsed to him or to his order or to bearer or in blank." We believe that this definition is applicable to G.S. 45-21.16. We are undoubtedly dealing with "instruments". One instrument was payable "to Robert Turner Carpenter or order"; the other, "to Edith Ann Carpenter or order". Neither note was endorsed, and each was in the possession of the original payee. Ownership is not indispensible to holdership. See G.S. 25-3-301. Respondents do not dispute any of the crucial facts. These facts constitute ample evidence that Robert Carpenter and Edith Carpenter were holders of a valid debt.

Respondents argue that there is not sufficient evidence of default to support a finding of default. We disagree. As we have previously noted, possession and introduction of a past due note makes out a prima facie case as to the entire amount of the note in an action on the note. Whitley v. Redden, supra. If the respondent in a proceeding to foreclose under a power of sale fails to offer any evidence to contradict the same type of evidence when it is introduced in a foreclosure proceeding, the trial court's finding of default will not be disturbed on appeal.

Respondents' final argument is that the order of the trial court "does not comply with the requirements of the foreclosure statute." Respondents argue that there was not a proper finding that Robert Carpenter and Edith Carpenter were holders of a valid debt. In his order, the judge referred to Robert Carpenter and Edith Carpenter as holders when he stated that "the holders of the Note" presented evidence of ownership. The order also reveals that he considered the question of whether they were "holders" when he found that "the holders of the Notes and the Deed of Trust are entitled to proceed with the foreclosure of the same . . .." Similarly, the order incorporated a finding of a valid debt. The findings reflected "evidence of the debt" and clearly included a finding of default. Even if the finding as to "debt" were insufficient, the finding of "default" must necessarily incorporate the concept of a binding obligation which, in this case, was the debt. In any event, the intent of the trial court is plain, and we will not reverse the trial court for harmless error. Rule 61, North Carolina Rules of Civil Procedure.

The judgment of the trial court in ordering that petitioner be allowed to proceed with foreclosure is

Affirmed.

VAUGHN and MARTIN, JJ., concur.