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Thomas D. Kempton, an associate engineer with Western Electric Company in the city of Winston-Salem and a married man of very little business experience, who had never owned any real estate, was desirous in the fall of 1960 of purchasing a home in the city. Ray Helsabeck is a licensed real estate broker in Winston-Salem. On 20 December 1960 Kempton entered into negotiations with defendant to purchase a house situate at 1237 Peachtree Street in the city of Winston-Salem owned by Mrs. Elizabeth H. Willard, a daughter of defendant, who at that time was a resident of Ohio. This Willard house at the time was burdened with a deed of trust securing an indebtedness in the sum of $10,062.00 in favor of the Prudential Insurance Company, *206 payable in monthly installments of $89.90. The negotiations terminated in a verbal contract of purchase and sale as follows: Kempton was to pay defendant a down payment of $900.00 in cash and give him a $1,200.00 promissory note, for Mrs. Willard's equity of redemption in the property, and he was to receive a deed for the property, and he and his wife were to assume the payment of the secured debt to the Insurance Company. That until the Insurance Company agreed that he and his wife could assume its secured debt, he was to make out monthly cheques for $89.90 payable to defendant, and defendant would use the proceeds of the cheques to pay to the Insurance Company the monthly installments due. In December 1960 Kempton borrowed $900.00, and gave it to defendant, and also a promissory note for $1,289.47. On 30 December 1960 defendant gave Kempton his promissory note reading: "Three years after date I promise to pay to the order of Thomas D. Kempton nine hundred and 00/100 dollars at $29.59 per month, Wachovia Bank & Trust Company." Thereafter, Kempton and his wife moved into the Willard house, and lived in it about seven months.
In August 1961 the North Carolina National Bank carried an account in the name of defendant or Carolina Realty Company. On 7 August 1961 there was presented to this bank a cheque for $273.26 signed by defendant for Carolina Realty Company payable to Prudential Insurance Company, which was not paid by the bank by reason of insufficient funds on deposit in the bank by the drawer.
This is a summary of defendant's evidence, except when quoted: As agent for his daughter Mrs. Willard, he ran an advertisement for the sale or rental of her house situate at 1237 Peachtree Street. As a consequence, he was contacted by Thomas Kempton who said he would like to buy it. He told Kempton it would take $1,287.53, which was the difference between what they owed Prudential Insurance Company and $11,900.00, and he would sell it for that amount. Or he would rent it for a year at $89.90 a month, which "was our costs per month of the payments, until he could raise this amount." Kempton gave him a cheque for $89.90 for rent of the property for January 1961, and moved into the house. Kempton said he would like to buy the property as soon as he could get the down payment. Kempton gave defendant a note for $1,287.53, saying, "I will give you a note for that amount until I can raise it, I have some money coming." He told Kempton he *208 would transfer the property when he, Kempton, paid off the note. A few days later Kempton gave him $900.00 saying he couldn't get any more. He told Kempton he would accept that until he got the $387.53. Kempton said that if he was going to have to pay 6% interest on his note until he paid it off, he would like to have 6% interest on the $900.00 in cash he gave defendant. Defendant said he thought that was fair; he would hold the $900.00 as a down payment and pay him 6% interest. Thereafter, he went to Ohio and procured a deed for the property to Kempton, and wife, from his daughter to be delivered when he got the remainder of his money.
On 7 February 1961 Kempton told him he had $100.00, and he could pay his $89.90 monthly payment, but if he did, he wouldn't be able to make a payment on the bank note for the $900.00 he had borrowed. Whereupon, Kempton gave him a cheque for $89.90, and he refunded him the amount he had to pay on his bank note. In March, April, May and June, Kempton could only pay $60.00 a month. He told Kempton in June this had gone on long enough, instead of his getting a full month's rent of $89.90, he was only getting $60.00 a month. In July Kempton told him he wanted to see the deed, and when Kempton received it, he walked out of the office over his protest carrying the deed.
However that may be, considering the State's evidence in the light most favorable to it, and giving to it the benefit of all legitimate inferences to be drawn therefrom, as we are required to do in passing on defendant's motion for judgment of nonsuit, State v. Davenport, 227 N.C. 475, 42 S.E.2d 686, this seems clear: Thomas D. Kempton and defendant as agent for his daughter, Mrs. Elizabeth H. Willard, entered into a contract of purchase and sale of the house situate at 1237 Peachtree Street in Winston-Salem, that this house was burdened with a deed of trust securing an indebtedness in the sum of $10,062.00 in favor of Prudential Insurance Company, payable in monthly installments of $89.90, that Kempton was to assume the payment of the secured debt to the Insurance Company, and that until the Insurance Company agreed that Kempton and his wife could assume the payment of its secured debt, Kempton was to make out monthly cheques for $89.90 payable to defendant, and defendant would use the proceeds of these cheques to pay to the Insurance Company the monthly installments due. That Kempton in January, February, March, April, May, June and July 1961 gave defendant cheques for $89.90 each, which were paid by the bank upon which they were drawn to defendant, and that defendant used the proceeds from four of these cheques to pay the monthly installments to the Insurance Company, and used the proceeds from the last three cheques for his own purposes. George B. Kempton testified that defendant at the conference in his office said "he had used the money from these checks; he said he would make the money good during that week." Defendant never did. Later Prudential Insurance Company foreclosed its deed of trust because the monthly installments due were in arrears.
To learn the best way to approach homebuying in North Carolina, we spoke with top real estate agent Mechelle Kuld, who completes 13% more sales than the average agent in Salisbury, North Carolina. Kuld, who has successfully represented homebuyers and sellers in more than 200 transactions in the heart of the state, says there are several logical steps you can take to successfully acquire a home in her state.
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