The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-03-24
Supreme Court Decisions.
(Reported by Jos. L. seawell.)
IERROD v. VAsS. Affirmed.

SHERROD ". VASS. Affirmed.
Mortgage Sale-Purchase by Mortgage s
Agent.
The rule prohibiting trustee from
buying at his own sale does no. apply
where a mortgage, upon default or mort
gagor, sold the land through his agent
and the mortgagee's agent bought tho
land at the request of nortgagrr upon
an agreement between the agent and
mortgagor that the agent would allow The
mortgagor ten days thereafter to re-
deem the land. In this case the time
to redeem was extended four days by the
mortgagee's agent after the ten days had
expired and the mcrtgagor failing to re-
deem, the agent (purchaser) conveyed the
land for a valuable consideration to an
other, and it held that such transaction
constituted no fraud and that the agree
ment Of the mortgagor to redeem was a
sufficient consideration and the agree
ment was valid, though in parol. Daw-
l1ins V. Patterson, 81 N. c., 3S4.
CAMP MFG. CO. V. LIVERMAN. Re-
versed.
Specific Devise-When subject to Tes-
tator's Debts.
Where land specifically devised is pur-
chased more than two years after the
granting of letters testamentary but af-
ter proceedings begun to sell the lands
of testator to pay dents. the land specif-
cally devised is subject to the debts of
testator if the land not specifically de-
vised is insufficient.
The appellant purchased the land spe-
cifically devised, more than two years af-
ter the granting OF letters testamentary
but after the institution of proceedings
nd
ii is held that an issue must be submit
ted to the jury as. to the claim of the
appellant, and If il should be. found that
he is the owner Of the land claimed,
after the land has been subjected to
the payment of testator's debts. This
case reported in 1913 N. c. Z commented
on and explained.
MILLER v. w. & P. RAILROAD CO. Err
ror.
Ordinary Care-Contributory Negligence
When the facts are undisputed, ordinary
care is a question of law for the court;
when the facts are disputed, it is the
duty of the trial Judge to explain what
would be ordinary care under certain
hypothesis and leave the jury to apply
the law to the facts as found.
Where one sees a locomotive standing
the usual manner, and drives across the
track in front of the engine, he cannot
recover for personal injuries caused by
his horse becoming frightened and run
ming away
PORTER V. WHITE. Affirmed.
Deed Absolute Converted into Mort
gage.
An exception to a refusal to submit
an issue, as to which there is no proof,
cannot be sustained
The plaintiffs case, to convert a deed
absolute on it's face into a mortgage,
comes within the rule laid down in Wat
kns v. Williams, 123 n G. no. that the
intention must be established by proof
OF facts and circumstances dehors the
deed and not 'by simple declaration of
the parties
In such case time is not of the es-
sence Of the contract. and it is immaterial
that the contract was in several instru-
ments.
AS no exception to the charge is sent
up, the court is presumed to have charged
the jury that the proof must be "clear
and incompatible with the idea Of a
purchase, and should leave no doubt that
a security was intended"
Where a registered deed was intended
as mortgage, it cannot have the eff
feet of a mortgage as to subsequent
bona fde purchasers for value and with
out notice.
DOWDY V. WHITE. No error.
In reply to a letter from plaintiff as
to the price of a tract of land, the de-
PENDANT wrote plaintiff that he would
take SIS for it and defendant would make
plaintiff a deed at any time 'he might
set" Four days afterwards, the plain
tiff replied by letter that he would take
the land at the price named and would
in few days place the money in bank
subject to defendants order, to be paid
upon the delivery of the deed. Defend
ant replied in a few days, giving the
abstract of his title and saying Let me
know and / will make you a deed at any
time, SO you do not wait to long" A
week later, plaintiff wrote defendant that
he was satisfied with the title and would
take the land at the price agreed on;
that he did not have the money in hand,
and asked defendant to wait on him ten
or fifteen days Ten days thereafter,
plaintiff wrote defendant that he had
deposited the money in a bank named,
and that defendant could send the deed
and get@the money at any time he saw
fit, and enclosed a receipt from the bank.
Thereupon, defendant wrote plaintiff that
as it had been a month since defendant
first offered to sell the land at the price
named, the plaintiff would ''have to ex
cuse" defendant and let him see if he
could not do better than plaintiffs offer.
Held
a. That this correspondence constitu-
ted a contract to sell the land and there
80
(2.) That the correspondence failed TO
the contract