Lenoir County NcArchives Court.....Cummings Et Al, Blackwell V. 1873
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Peggy Payne paynep@comcast.net April 7, 2012, 10:29 am

Source: N C Reports
Written: 1873

BLACKWELL vs CUMMINGS and others

    Where a mortgage is impeached for fraud, in that, the extension of it was 
obtained through false and deceitful representation, it is competent for the 
mortgagee (the plaintiff) to prove that the mortgagors executed the same of 
their own accord, and without solicitation on his, the mortgagee's part, as 
facts and circumstances to go to the jury for the purpose of disapproving the 
allegations of fraud.  The weight to be be given to such evidence is 
altogether a question for the injury.

     CIVIL ACTION tried before Clarke, J., at the Spring Term, 1872, of LENOIR 
Superior Court.

     The suit was brought by plaintiff to foreclose a certain mortgage made by 
defendant Matilda and her husband, since dead, to secure the sum of $2,000, of 
which there was due at the time the complaint was filed $1,440.80.

     The answer of the defendant Matilda, the other defendants being her 
children, and heirs at law of James B. Cummings, deceased, her husband, 
alleges that the mortgage described in the complaint of plaintiff was void on 
account of fraud, and was obtained to defraud her husband and herself of their 
homestead by the false and fraudulent representations of the plaintiff.

     On the trial, to support the allegation of fraud, the defendant, Matilda, 
testified that she was induced to sign the mortgage, for the reason that the 
plaintiff promised to advance to her husband, to be used in his business, the 
sum of $700 over and above a judgment which he, the plaintiff, had obtained 
against them; and that when applied to, a day or two after, refused to comply 
with his promise, giving as a reason that certain property was not transferred 
in the mortgage, which her husband, plaintiff, said had previous to its 
execution, promised should be contained in it; that she applied to plaintiff 
again for the $700, and he again refused to pay the same, alleging the same 
reason.

    A.J. Loftin, for the defendant, testified that he was the plaintiff's 
attorney at the time the mortgage was drawn; that the mortgage was read to the 
parties, and that the plaintiff objected to it, for the reason that certain 
property in Newbern was left out of it, and there was no power of sale; that 
plaintiff consulted with him, the witness, and upon being advised that it 
would be sufficient, he finally accepted it.

     The plaintiff  himself testified that the mortgage was made at the 
instance of defendants, and that he agreed to pay the $700 to the defendants, 
and was ready to do so; but that the defendant came to him and told him that 
her husband was drinking and she did not want the $700 to be paid to him; that 
afterwards both defendant and her husband came to him and told him they did 
not wish the money ($700) paid; that the judgment was as much as they could 
redeem.  He further testified that the defendant, since the death of her 
husband, had expressed her gratification to him, the plaintiff, that the $700 
had not been paid, as it would have been an entire loss.  That he was boarding 
with defendant when the mortgage was executed, and had been for twelve or 
eighteen months.

    It appeared in evidence that the defendant superintended her husband's 
business, and had control of his money.

    The plaintiff then offered to prove that the defendant and her husband 
proposed to make the mortgage of their own accord, without any solicitation 
whatever from proving the allegations of fraud contained in the answer to the 
complaint.  This was objected to, and ruled out by the Court.  Plaintiff 
excepted.

    Plaintiff insisted and requested his Honor so to charge, that if the jury 
should be of opinion from the evidence that the sum of $700, which the 
defendant alleges was demanded by her before signing the mortgage, was 
subsequently relinquished by her and her husband, and the plaintiff relieved 
from paying the same upon her request, then they should find for the 
plaintiff.  This request was omitted by the Court, it not having made when the 
Judge charged the jury.

    There was a verdict for the defendants.  Motion for a new trial; motion 
refused.  Judgment and appeal by the plaintiff.

    Phillips & Merriman, for appellant.
    Smith & Strong, contra.

    NC Supreme Court Justice BOYDEN, J.  In this case the defendant alleged 
that the deed of mortgage made to the plaintiff by the defendant and her 
husband was fraudulent and void for several reasons; and among other reasons, 
says, "that the plaintiff, for the purpose of securing a judgment for thirteen 
hundred dollars, he had obtained against the husband of the defendant, falsely 
and deceitfully, for the purpose of obtaining the real estate in controversy 
as security for his judgment offered to lend to her husband $700 in cash, if 
her husband, together with defendant, Matilda, would join in a mortgage of the 
real estate now in  controversy, to secure the payment  both of the judgment 
and the seven hundred dollars then offered to be advanced; and that having 
implicit confidence in the plaintiff, they at length yielded to his 
solicitations, and executed the mortgage in controversy."  

    The plaintiff offered to prove, "that the defendant and her husband 
proposed to make the mortgage of their own accord, without any solicitation 
whatever from the plaintiff, as facts and circumstances to go to the jury for 
the purpose of disproving the allegations of fraud, as alleged in the answer 
and sworn to by the defendant."  This evidence was objected to by the 
defendant and rejected by the Court.  In this there was error, as we hold that 
upon the question of fraud made by the defendant, this evidence was clearly 
competent; but how much weight the jury would have given to it was a question 
for them.

    This disposes of the case in this Court and renders it unnecessary to 
notice the other questions made in the cause.

    There is error.

    This will be certified.

    PER CURIAM                      Venire de novo.

Additional Comments:
In the NC Supreme Court January Term 1873                         

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