Boswell v. Boswell

85 S.E.2d 899 (1955)

241 N.C. 515

James L. BOSWELL and wife, Bessie Lee Boswell; Grady A. Boswell and wife, Lillie Boswell; A. Jasper Boswell and wife, Ruth Boswell; William Hackney Boswell; Perry Lee Boswell; Clyde Boswell, Administratrix of Dorsey Lee Boswell, Deceased, v. Jessie Elizabeth BOSWELL, a minor; Byerly Ann B. Yow, a minor, and her husband, John Yow, Jr.; Linda Ann Boswell, a minor; Almerene H. Boswell, Roney M. Williamson; Renfrow Lucas Company, Inc., and Luke Lamb, Trustee.

No. 104.

Supreme Court of North Carolina.

March 2, 1955.

*902 Lucas, Rand & Rose, Wilson, for Roney M. Williamson, defendant, appellant.

Gardner, Connor & Lee, Wilson, for Renfrow-Lucas Co., Inc., respondent, appellee.

BOBBITT, Justice.

The record does not disclose, by stipulation or otherwise, the facts necessary for decision. Issues of fact raised by the pleadings remain unanswered.

This Court declares the law as it relates to the facts of the particular case under consideration. A decision may be considered authority only within the framework of such facts. Dissimilarity as to a material fact may call for application of a different principle of law. Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10. Hence, the Court will not give advisory opinions or decide abstract questions. Poore v. Poore, 201 N.C. 791, 161 S.E. 532. Each decision of law is made in relation to specific determinative facts, established by stipulation or by appropriate legal procedure.

We note first that the record fails to disclose the amount available for distribution as the Boswell share. How much, if any, would remain available for distribution after payment of the $700 debt secured by the first lien deed of trust to Luke Lamb, Trustee? Would it be sufficient to pay more than $400 on account of the Williamson mortgage if it were determined that Boswell owed Williamson more than $400 and that such excess was secured by the mortgage? If so, would the debt to Williamson in the amount so established exhaust the fund and leave nothing for Renfrow-Lucas and Grice, or would Boswell alone be affected? These, and like questions, are not answered by facts stipulated or established. It is not our practice to decide causes where essential facts wander elusively in the realm of surmise.

The cause was presented to Judge Martin for decision solely on the basis of the pleadings and the records of the asserted liens. There was no waiver of jury trial. G.S. § 1-184 et seq. If such was intended, no evidence was offered as a basis for findings of fact. Thus, the court was called upon to make rulings of law before the ultimate issues of fact had been determined. True, both Renfrow-Lucas and Boswell, in their answers, contend that the maximum amount for which the Williamson mortgage would constitute security, in any event, is the $400 debt described therein; but it is not admitted that Boswell is indebted to Williamson in the amount of $400, much less an amount in excess thereof. The allegations as to the debt due Williamson are denied both by Boswell and by Renfrow-Lucas. The amount of the debt, if any, owing by Boswell to Williamson has not been established.

Upon this record, the parties before us present arguments pro and con as to the validity of the "dragnet" provision in the Williamson mortgage. Appellant cites, in support of its validity, Norfleet v. Pamlico Insurance & Banking Co., 160 N.C. 327, 75 S.E. 937; Boney & Harper Milling Co. v. J. C. Stevenson Co., 161 N.C. 510, 77 S.E. 676; Edwards v. Buena Vista Annex, 216 N.C. 706, 6 S.E.2d 489. These cases concern the provision of a collateral form bank note, e. g., as in the Edwards case, where it is provided that the maker has deposited described collateral security, "`for the payment of this and any other liability or liabilities of the undersigned to said bank, or which may hereafter arise, whether due or not due, however arising or evidenced.'" We refer to these cases solely to point out that each was decided when the full facts as to the amount, origin and nature of the maker's "other debt to the bank" were stipulated or established; and each decision dealt with the particular "dragnet" provision in relation *903 to the particular facts. Reference to other decisions is sufficient to show that a different result may be reached when the exact facts of each case are considered. Bank of Murphy v. Murphy Furniture Co., 169 N.C. 180, 85 S.E. 381; Newsome v. Bank, 169 N.C. 534, 86 S.E. 499; Powell v. McDonald, 208 N.C. 436, 181 S.E. 277.

In First Nat. Bank of Corning v. Corning Bank & Trust Co., 168 Ark. 17, 268 S.W. 606, 607, the chattel mortgage described a debt, evidenced by note, and thereafter, in the defeasance clause, provided that on payment of the described note, "together with all other indebtedness which may be due" the mortgagee, the mortgage should be void. It was held that the mortgage secured the indebtedness evidenced by such note and additional advances, not indebtedness evidenced by prior notes. In relation to this particular "dragnet" provision, the court took the view that, in the absence of a specific provision sufficient to show the contrary, the provision should not be construed as intended to cover any debt outstanding when the mortgage was made except the debt described therein.

In the later Arkansas cases of Hendrickson v. Farmers' Bank & Trust Co., 189 Ark. 423, 73 S.W.2d 725, and Bank of Searcy v. Kroh, 195 Ark. 785, 114 S.W.2d 26, the rule adopted, as stated in the fourth headnote in the Bank of Searcy case, is as follows:

"A mortgage which is given to secure a specific debt named will not be extended to include antecedent debts unless the instrument so provides and identifies the antecedent debts in clear terms, and cannot be extended to cover debts subsequently incurred unless they are of the same class and so related to the primary debt that mortgagor's assent will be inferred."

Again, the Arkansas cases are referred to solely to point out the necessity that the full facts as to the amount, origin and nature of the mortgagor's "other debt to the mortgagee" be established before attempting to construe the "dragnet" provision.

Numerous cases from other jurisdictions, under the Annotation, "Debts included in provision of mortgage purporting to cover unspecified future or existing debts (`dragnet' clause)," are collected in 172 A.L.R. 1079.

Renfrow-Lucas takes the position that Judge Martin's order is not prejudicial to Williamson and should be affirmed. In support of this position the argument advanced is that the Williamson mortgage is void for uncertainty of description. Holloman v. Davis, 238 N.C. 386, 78 S.E.2d 143, is cited as authority. Hence, the argument runs, since Judge Martin's order is more favorable to Williamson than he deserves, Williamson has no ground for complaint or appeal.

But this position of Renfrow-Lucas ignores two vital facts, viz.:

First, its answer admits that the Williamson mortgage is a valid lien, subject only to the deed of trust to Luke Lamb, Trustee. True, there is no admission as to the amount of the debt; and it is alleged that, whatever Boswell may owe Williamson, the maximum debt for which the Williamson mortgage can be deemed security is the described debt of $400. Under this pleading, Renfrow-Lucas cannot on this appeal challenge the Williamson mortgage as void for uncertainty of description.

Second, the contention as to uncertainty of description is brought forward solely on the basis of the statement in the brief of Renfrow-Lucas to the effect that, while the Williamson mortgage purports to describe a tract of 31 acres in Black Creek Township, the lands sold in the partition sale proceedings consist of two non-contiguous tracts, one of 23 acres in Black Creek Township and the other of 8 acres in Cross Roads Township. The record before us does not show what lands were involved in the partition sale proceedings.

The court below was in error in ruling on the question of priorities when the ultimate issues of fact remained undetermined *904 and when the facts as to the origin and nature of the alleged debt to Williamson (in excess of $400) was not disclosed. The result is that the proceedings will be remanded to the superior court so that the controverted and determinative facts may be established and rulings as to the law may be made in relation thereto.

Error and remanded.