Moran v. Bank of Forsyth

Beck, J.

(After stating the facts.)

1. We are of the opinion that the court committed no error in striking that portion of T. J. Moran’s amended answer which •“sets up that the sale of the land by Mrs. C. E. Moran to her ■children of the 135 acres is void.” The said T. J. Moran had been .a party to the sale which he now attacks as void; he had accepted title to one-fifth interest thereunder; he had purchased the interest- of his two sisters therein; he had gone into possession'of the isame under said sale, and made no,tender of the lands, rents or jprofits; he had sold this land to W. A. Davis, making him a deed •thereto, and had mortgaged it to his sisters to secure a debt. He liad deeded and mortgaged that very interest in the land which it is now sought to subject to the claims of his creditors, and in both deed and mortgage had recited that he had title to that interest. In a mortgage which he executed to H. P. Moran is to be found the recital that the said T. <1. Moran covenants with the said H. P. Moran that he “has good title and right to mortgage and convey the property aforesaid.” And in a mortgage of Mrs. Fletcher to PI. P. Moran is to be found a recital in similar terms. Both of these last-mentioned mortgages had been deposited, by the plaintiff in error and his brother with the Bank of Forsyth to secure the payment of money. And we do not think that in this proceeding, instituted to collect that money, the ¡ilaintiff in error should be allowed to set up and maintain that' the sale to himself and his sisters, upon the validity of which depends the value of the deeds and mortgages, was void. Against such a defense the doctrine of estoppel was properly applied.

2. The final verdict and decree as rendered at the October term, 1906, in so far as it affects the interest of the plaintiff in. error, was not invalid for any reason disclosed by this record under the pleadings as they stood at that time.- It is true that orders had been taken at the preceding March term, striking certain parties, and disallowing certain amendments over objections of the plaintiff in error. But the order of the court overruling the-objections was not excepted to at the March term nor within thirty days thereafter, save in regard to striking that portion of the answer of the plaintiff in error which we have held above was properly stricken, and the attempted assignment of error upon the-ruling of the court at the March term is made too late in the.main bill of exceptions sued out to the court's final judgment at the October term.

Judgment affirmed.

All the Justices concur, except Holden,. Jc, who did not preside.