Central Bank & Trust Co. v. Carolina Insurance

Per Curiam.

The first four exceptions were taken to the court’s refusal to dismiss the action and to direct an answer to the second and fifth issues. Conflicting evidence in support of the contentions of the parties precluded a nonsuit and as to the second and fifth issues the burden of proof was on the defendant. A directed instruction cannot be given in favor of the party upon whom rests the burden of proof. Bank v. McCullers, 200 N. C., 591.

The final and determinative question is raised by the provision that the mortgagee (or trustee) should notify the defendant of any change of ownership or occupancy or increase of hazard which should come to the knowledge of the mortgagee (or trustee). Such knowledge, if acquired by the mortgagee or trustee, should have been communicated to the defendant. It was contended by the defendant that the Federal Mortgage Company had notice of the conveyance of the insured property from Ingle to Lyda and of the advertisement of sale under the foreclosure of the second deed of trust; also that this company was the agent of the Central Bank and Trust Company, mortgagee or trustee, and that notice to the agent was notice to the principal. It was further contended that neither the Mortgage Company nor the bank imparted notice to the defendant and that the policy of insurance is consequently void.

There is evidence that Ingle obtained from the Mortgage Company the loan secured by the deed of trust, at least the amount represented by the ‘‘'first mortgage notes,” and it is argued that this company is in reality the mortgagee; but in our opinion the proper interpretation of the contract leads to the conclusion that the Mortgage Company was the beneficiary or cestui que trust and the Central Bank and Trust Company the trustee expressly designated in the deed of trust. The record contains evidence in support of the contentions of the plaintiffs and the defendant, but the question of agency was submitted to the jury under instructions, in which we find no reversible error, and was answered in favor of the plaintiffs. We do not think the court’s instruction on this question should be restricted to the limitation by which it is circumscribed in the argument for the defendant. It is a reasonable inference from the evidence that the Mortgage Company was merely an agent for the collection of the notes.

We have considered all the exceptions and find no reason for disturbing the judgment. Judgment

Affirmed.