Aycock Mortgage & Bond Corp. v. Talley
Aycock Mortgage & Bond Corp. v. Talley
Opinion of the Court
(After stating the foregoing facts.) The execution of the notes sued on is not denied, and they have never been paid. The plaintiff therefore is entitled to a verdict and judgment in the amount of the principal as represented by these notes and interest thereon, less any credits which should have been made on the debt represented by the notes by an application of the $150 realized on the sale of the Fair Street property which had been conveyed by the defendant as security for the notes unless the Aycock Corporation has made collections on the other notes which this corporation held as collateral for the notes sued on, or unless the Aycock Corporation converted these collateral notes to its own use by selling or transferring them to some one else. If any money has been collected by the plaintiff on these collateral notes, or if they have been sold by the plaintiff or otherwise converted by the plaintiff, the plaintiff should account to the defendant.
There is no evidence whatsoever that any payments have ever
While perhaps it was to the interest of the Aycock Corporation to transfer the collateral notes to Gober, so that Gober could foreclose on all the notes, including those held by him as well as the collateral notes, if the property had brought more at the sale and foreclosure by Gober than the amount of Gober’s claim, which, under the contract between Mrs. Talley and the duBignon Company were transferred to Gober, constituted a first mortgage on the church property for the payment of the duBignon notes held by Gober, the Aycock Corporation by that transaction would be able to realize something on the collateral notes held by it.
While perhaps the fact that Gober, as appears only from the recitals in the deed which he executed as attorney in fact after selling the church property under the power of sale contained in the deed, sold the property for the purpose of satisfying the entire indebtedness against it, including that represented in the collateral notes which had been conveyed to the Aycock Corporation, is a circumstance which, when taken in connection with any other evidence of a transfer of the collateral notes or of their conversion by the Aycock Corporation would authorize an inference that the Aycock Corporation had sold or transferred these notes, this fact standing alone is not sufficient to authorize the inference that the
It is suggested by counsel for the defendant in error that the evidence authorized the inference that the Aycock Corporation furnished the money with which Gober bought the first series of notes from the duBignon Company, and that therefore Gober, in taking a transfer of these notes and in foreclosing on them and also on the collateral notes which the Aycock Corporation owned, was acting as agent for the Aycock Corporation. If this be true, it was no conversion of the collateral notes. It makes no difference whether Gober in his own right acquired the duBignon notes, or whether the Aycock Corporation itself acquired the duBignon notes, the contract under which Mrs. Talley transferred the notes to the duBignon Company gave to the duBignon Company and its assigns a first mortgage on the Baptist Church property to secure these notes. If the Aycock Corporation itself had bought these notes from the duBignon Company, the Aycock Corporation as transferee of the duBignon Company would have held a first mortgage on the Baptist Church property for tire payment of these notes which would have taken precedence of the second mortgage against this property which the Aycock Corporation held as security for the collateral notes. In either event the proceeds of the sale, which were $250, and less than the amount due on the duBignon notes, would have been first applied, on the du
There being no evidence whatsoever from which it could be inferred that any payments had been made on these collateral notes, or that these notes were ever sold or transferred by the Aycock Corporation to any one for value, and were thereby converted by the Aycock Corporation, and there being absolutely no evidence as to the value of these notes at any time after the Aycock Corporation acquired them, and therefore there being no evidence as to their value at the time of any conversion of these notes by the Aycock Corporation, if it could be inferable that they were converted, and there being evidence that at the time of the trial these notes were valueless and worthless, there is absolutely no evidence from which it can be inferred that the defendant was entitled to any credit on the notes sued on, either from payments made on the collateral notes after the Aycock Corporation had acquired them, or on account of any conversion of these notes by the Aycock Corporation, the evidence demanded a verdict for the plaintiff. The verdict found for the defendant was not as a matter of law authorized by the evidence, and the court erred in not granting a new trial to the plaintiff.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.