Nance v. Atkins

Decided May 17, 1916

Supreme Court of North Carolina · decided 1916-05-17

Civil actioN tried before Lame, J., and a jury, at October Term, 1915, of MONTGOMERY. This is an action to foreclose a real estate mortgage executed to secure the payment of a note of $300. Tbe plaintiff held two other notes against tbe defendant secured by chattel. mortgages, one for $235 and the other for $225. Tbe plaintiff filed a bill of particulars with bis complaint in which tbe three notes were charged against the defendant and which showed payments aggregating $655.

Decided 1916-05-17

AileN, J.

¶1It is probable that his Honor intended to set aside the findings upon the first and second issues, but he did not do so, and with those issues standing the judgment rendered is clearly erroneous.

¶2The plaintiff admits payments on the three mortgages amounting to $655, and the jury has found that it was the agreement of the parties that half of this amount should be applied to the $300 note, which will fully satisfy and discharge it.

¶3The defendant is, therefore, entitled to have the judgment set aside and a judgment entered that the note has been paid, and for costs.

¶4Reversed.