This action was brought to recover the amount of a sealed promissory note executed by the defendant's intestate to C. M. McLoud and assigned by the payee to the plaintiff. The note is in the following words and figures: "Three months after date, with 8 per centum per annum interest after maturity (and payable semi-annually if note allowed to run) I promise to pay to the order of C. M. McLoud nine hundred and forty-six 81-100 dollars, for value received, negotiable and payable at the Bank of Asheville, and being part of purchase money still due by me on the P. W. Roberts place in Asheville, on which I now reside. W. M. Cocke, Jr. (seal), 2 Sept., 1895."
It is agreed that the consideration upon which the note was executed, towit, a part of the purchase money due at the time of its execution by the maker for the Roberts place, upon which the intestate of the defendant resided, was not an original transaction between the parties to the note. The property, the Roberts place, was in the first instance the subject of a contract dated 3 January, 1876, in which G. M. Roberts, the plaintiff, was to convey the same to R. M. Deaver upon the payment by Deaver of the sum of $8,525, to become due at (468) different times and in different amounts. Among the future instalments was one of $1,000, due 1 March, 1876; one of $631, 15 May, 1876; one of $869, due 15 May, 1876; one of _______ due 15 May, 1876; and three of $1,341.62 1/2, each with interest on all from 14 January, 1876. The contract between Roberts and Deaver contained the following provision: "It is further agreed that the three last above named notes, together with that of $631 above named, with interest thereon, are to be *Page 324 paid by the said Deaver to Mrs. S. G. Buchanan in order to discharge a lien in her favor to the extent of the amount of said notes on the property hereby sold; and the said notes are to be left in the possession of C. M. McLoud, through whom the said application of said payments is to be made."
Afterwards, on 12 October, 1881, R. M. Deaver and A. E. Deaver, the latter being jointly interested though not named in the contract between Roberts and R. M. Deaver, contracted to sell their interest to the Roberts place to W. M. Cocke, Jr., the intestate of the defendant for the sum of $8,300, payments to be made in the following manner: "Said Cocke is to assume and pay to Mrs. S.E. Buchanan the amount that may be found to be due her upon a mortgage held by her upon said land, and also to pay to G. M. Roberts the balance of the purchase money due to him for said land, and to pay the balance of the said sum of $8,300 to said R. M. and A. E. Deaver, in equal instalments, at one, two and three years, notes to be given for said balance, bearing interest from date at the rate of 6 per cent per annum, and title to be retained until all the purchase money shall be paid."
Roberts agreed in writing to the terms of the last named contract, and agreed that he would convey the title, as he might be requested to do by the Deavers, upon the payment to him of the balance of the (469) purchase money under his contract with the Deavers. Afterwards the plaintiff and his wife, R. M. Deaver and his wife, and A. E. Deaver and his wife, executed a deed for the property to Mrs. Cocke, the wife of the defendant's intestate, at the request of the husband, in which deed all the particulars of the contracts above referred to were recited, and it was further recited that all the conditions and terms therein set out had been fully met and complied with. The defendant's intestate went into possession of the property. The probate of the deed as to the plaintiff and his wife was had on 10 January, 1886; that of R. M. Deaver and his wife on 15 January, 1886, and that of A. E. Deaver and his wife on 15 September, 1886. The intestate of the defendant on the first trial was examined as a witness in his own behalf and stated that the note sued on in this action was given in payment of the balance due to the plaintiff for the lot of land on which he lived in the City of Asheville. He testified further that the note was for the balance of the purchase money due Roberts, and settled the matter with him. This evidence was admitted on the last trial by consent, the witness having died between the times of the two trials. On the trial the defendant was permitted to introduce the deed from Roberts and wife and others to Mrs. Cocke as evidence of the payment of the notes sued on, and the plaintiff's first exception is to that ruling of his Honor. The deed was not competent evidence to show *Page 325 payment of the note. The testimony of the defendant's intestate was to the effect that he wished to get the deed to the land made to his wife, and to that end got the plaintiff to take his note, made payable to McLoud and by McLoud endorsed to the plaintiff (which is the note in suit) for the balance that was due by the Deavers on the land. This balance was to have been paid by the defendant's intestate to the plaintiff under the contract between the Deavers and the defendant's intestate. (470) The note sued on then was, at the time of the execution, the balance due to the plaintiff by the Deavers, and, according to the evidence of the defendant's intestate, the note was given for the balance of the purchase money due to the plaintiff and settled the transaction with him. The deed, therefore, could be no evidence of the payment of the note as the note was given, according to the testimony in the case, that the deed might be made and it collected, and on its face that it was for a balance due for the land.
The evidence which was admitted, and upon which the plaintiff bases his exceptions, Numbers 2 and 3, was not competent to show payment of the note, but was relevant to show the connection the defendant's intestate had with the purchase of the land and with the Deavers in relation thereto, and to explain the reason for the execution by the defendant's intestate of the note sued on.
Exception 6 ought to have been sustained. The Buchanan note and mortgage, even if it had been paid at the time satisfaction of it was entered in the registry, could have tended in no wise to prove that the note sued on had been paid. But the Buchanan mortgage was not paid at the time the entry of satisfaction was made, and that fact was admitted on all sides at the trial. Under the contract between the defendant's intestate and the Deavers, the Buchanan note and mortgage had to be paid by the defendant's intestate, and also several notes to the Deavers as a part of the purchase money which the defendant's intestate agreed to pay to the Deavers. The Buchanan mortgage was not satisfied of record until 16 January, 1886, and on that day the execution of the deed was proved by Roberts and wife; that of R. M. Deaver and wife on 19 January, 1886, and that of A. E. Deaver and wife on 13 September, 1886. The Buchanan mortgage was satisfied by an entry to that effect on the registry, but it was not, in fact, paid, as by admission (471) in the case the defendant's intestate made payments on it long after satisfaction had been entered on the registry and the deed from Roberts and wife and others to the defendant's intestate had been delivered. That was conclusive proof that some satisfactory arrangement had been made between the defendant's intestate and the holder of the Buchanan note and mortgage by which the land was relieved of the encumbrance. *Page 326
The plaintiff's exception, No. 4, to the admission of the Gump settlement ought to have been sustained. The note which was deposited with McLoud as a collateral to secure the debt which Roberts, the plaintiff, owed to Gump Co., was one which expressly declared to be a lien on the P. W. Roberts property. The note sued on could not, therefore, have been referred to. It was no lien on the property, and was executed, as testified by defendant's intestate, to relieve the property of the lien resting on it under the several contracts of sale with the plaintiff. The note which was deposited with McLoud clearly was one of those notes which the Deavers owed to Roberts under the contract between them. There was error in the rulings of the court below as pointed out, and there must be a
New trial.
(472)