Combs v. PorterAnnotate this Case
58 S.E.2d 100 (1950)
231 N.C. 585
COMBS et al. v. PORTER et al.
Supreme Court of North Carolina.
March 22, 1950.
*102 W. H. McElwee, North Wilkesboro, for plaintiffs appellees.
Trivette, Holshouser & Mitchell, North Wilkesboro, and J. F. Jordan, Wilkesboro, or defendants.
Plaintiffs' allegation of title was supported by the stipulation that C. C. Combs was, at the time of his death, the owner of the land in controversy, and by the further fact that plaintiffs are the only heirs at law of C. C. Combs, the ancestor last seized. On the other hand, the defendants staked their case entirely on the Sparks mortgage plus evidence of a foreclosure sale thereunder, and the recorded deed purporting to have been executed in 1930 by the executors of the mortgagee wherein was recited forfeiture for nonpayment, due advertisement, and purchase by I. A. Combs under whom they claim. There was no plea of the statute of limitations or laches, nor allegation of adverse possession under color, nor that either of defendants was an innocent purchaser for value. The plaintiffs replied that the mortgage had been paid in the lifetime of C. C. Combs, that no foreclosure sale was ever advertised or held, nor had any deed pursuant thereto been executed by the executors of the mortgagee, and that the purported deed was fraudulent and void.
Upon these allegations and the conflicting evidence thereunder, as to payment of the mortgage, foreclosure sale and execution of the deed, the case was fought out, resulting in verdict and judgment for the plaintiffs.
While the first issue was apparently addressed only to the question of the execution and delivery of the deed by one of the executors of the mortgagee, in the light of the pleadings, evidence and charge of the court thereon, we think all the material questions litigated were presented to the jury under this issue and were answered in favor of the plaintiffs. There was no objection or exception to the form of this or any other issue submitted. Bonnell v. City of Greensboro, 164 N.C. 330, 80 S.E. 377; Stadiem v. Harvell, 208 N.C. 103, 179 S.E. 448.
The burden of proof was on the plaintiffs to show that the mortgage had been paid off and discharged before the purported sale. Rosemary Mfg. Co. v. Jefferson, 216 N.C. 230, 4 S.E.2d 434. *103 Likewise, the recitals in the deed of the mortgagee's executors were prima facie evidence of the facts herein set forth (Dillingham v. Gardner, 219 N.C. 227, 13 S.E. 2d 478), and the burden of proof was on the plaintiffs to show otherwise, but the verdict seems to have sustained the plaintiffs' attack upon the purported deed. Moreover, while the statute, G.S. § 45-4, authorizes the executors of a deceased mortgagee to exercise the power of foreclosure, it has been repeatedly held by this Court that when a power of sale is conferred upon two executors the power must be executed by them jointly, and that both must join in the sale and execution of the deed. Wasson v. King, 19 N.C. 262; Swann v. Myers, 75 N.C. 585; Trogden v. Williams, 144 N.C. 192, 204, 56 S.E. 865, 10 L.R.A., N.S., 867.
The court properly placed the burden of proof on all the questions embraced in the first issue on the plaintiffs, and his instructions to the jury presentation of the evidence and contentions of the parties thereon seem to have been free from prejudicial error.
The court further instructed the jury if they answered the first issue in favor of plaintiffs, that is no, they need not answer the second issue, but also added, "if you should answer the first issue no, then you would go to the second issue." Whatever may have been the purpose of the court in this instruction, it appears that the jury having answered the first issue no, that is, in effect sustaining the contention of the plaintiffs that no foreclosure had been had or deed executed, proceeded to answer the second issue yes, thereby finding plaintiffs were entitled to the land. The defendants' exception to the charge on the second issue is well taken, as no rules for the guidance of the jury were laid down or the law applicable to the establishment of title to real property explained. Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484; G.S. § 1-180. This would ordinarily require a new trial, but for the fact that under the pleadings, stipulations, evidence, and charge of the court the verdict on the first issue was sufficient to establish the plaintiffs' title and right to possession of the land. Donnell v. City of Greensboro, supra; Stadiem v. Harvell, supra. The undenied fact that plaintiffs are the heirs of C. C. Combs, and the admission that he was the owner in fee simple of the land, nothing else appearing, would be sufficient to make out plaintiffs' title, and by the verdict on the first issue defendants' claim of superior title by virtue of a purported foreclosure sale and deed was determined adversly to the defendants. Plaintiffs in that state of the case would have been entitled to judgment on the admissions and verdict, and any error in failing to charge more fully on the second issue would be harmless error. Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863; State v. King, 225 N.C. 236, 34 S.E.2d 3.
The defendants noted numerous exceptions to the charge on the third issue, but that issue, which was submitted without objection or exception, was not answered by the jury, and the question of declaring defendants trustees of the title for the benefit of plaintiffs in the event plaintiffs failed on the first issue was eliminated from the case. Of this defendants cannot complain. For the same reason defendants' exception to evidence offered by plaintiffs pertinent to the third issue may not be held sufficient to require another trial.
Defendants assign error that one of plaintiffs was permitted to testify that while he was in the army he was overseas a portion of the time. This was apparently offered in anticipation of a possible defense which, however, was not interposed. It is not clear that objection was made to this evidence, but, in any event, we do not perceive any prejudicial error in this respect.
After consideration of the entire record in the light of defendants' exceptions, we reach the conclusion that no harmful error of which defendants can justly complain has been shown, and that the result should not be disturbed.