Gaskins v. Blount Fertilizer Company , 260 N.C. 191 ( 1963 )

132 S.E.2d 345 (1963) 260 N.C. 191

J. Claude GASKINS
v.
BLOUNT FERTILIZER COMPANY and Fred T. Mattox, Substituted Trustee, and D. T. House, Jr., Clerk of the Superior Court of Pitt County.

No. 97.

Supreme Court of North Carolina.

September 18, 1963.

Charles L. Abernethy, Jr, New Bern, for plaintiff appellant.

Albion Dunn, Greenville, for defendant appellees.

PER CURIAM.

In defendants' answer to the petition and motion in the action for a temporary restraining order, it is alleged in their second further answer and affirmative defense in substance: On 23 March 1962 plaintiff executed a deed of trust to E. H. Taft, Jr., trustee, securing an indebtedness of $1,301.20 due and owing Blount Fertilizer Company, and payable on 1 October 1962, on the same property described in the deed of trust from plaintiff and wife to Hite, which property is the subject matter of the present action. That plaintiff defaulted in the payment of this indebtedness of $1,301.20 when due, that the deed of trust securing this indebtedness was properly foreclosed on 26 November 1962, and at the sale M. B. Massey, Jr., became the last and highest bidder. That his bid was not raised. Whereupon, the trustee executed and delivered a deed for the property to Massey. That Massey is now the owner of the property described in the deed of trust, which is the subject of the present action, subject to the deed of trust executed to Hite, trustee, and that plaintiff and his wife have no interest in the property described in the deed of trust in the instant action. Plaintiff, replying to the above allegations of the answer, avers in substance: That the deed of trust to Taft was not properly foreclosed, that Taft was a member of the law firm of Blount and Taft, that the senior member Blount, was a stockholder in Blount Fertilizer Company, that it was generally agreed that no deed would be delivered to Massey, and that a deed was executed and delivered by Taft, trustee, to Massey, on 22 January 1963.

It affirmatively appears from plaintiff's reply that when Judge Hubbard entered the two judicial orders at the March 1963 Session, plaintiff had no interest in the property described in the deed of trust set forth in the complaint in the present action, for the reason that the deed executed and delivered to Massey, pursuant to the foreclosure of the junior deed of trust by Taft, trustee, is for the same property described in the deed of trust to Hite, and vested in Massey, the purchaser, plaintiff's equity of redemption and rights in the property described in the junior deed of trust and also in the same property described in the deed of trust to Hite. Staunton Military Academy, Inc. v. Dockery, 244 N.C. 427, 94 S.E.2d 354; Merchants' Bank & Trust Co. v. Watson, 187 N.C. 107, 121 S.E. 181; Brett v. Davenport, 151 N.C. 56, 65 S.E. 611; Bobbitt v. Stanton, 120 N.C. 253, 26 S.E. 817; 59 C.J.S. Mortgages, §§ 514, 556; 37 Am. Jur., Mortgages, sec. 760.

Plaintiff was not aggrieved by the two judicial orders entered by Judge Hubbard at the March 1963 Session, because he had no rights at that time in the property described in the deed of trust set forth in the complaint, a foreclosure of which he seeks to enjoin. For a party to be aggrieved he must have rights which were substantially affected by a judicial order. Where a party is not aggrieved by the judicial order entered, as in the present case, his appeal will be dismissed. G.S. § 1-271; G.S. § 1-277; Coburn v. Timber Corp., N.C., 132 S.E.2d 340.

Further, it appears from a motion to dismiss plaintiff's appeal filed in this Court that immediately following the dissolution of the restraining order by Judge Hubbard at the March Session 1963, the substituted trustee, Mattox, executed a deed to the purchaser upon receipt of the purchase price for the property described in the deed of trust set forth in the complaint, which deed has been properly recorded. Plaintiff in his answer to the motion does not controvert this allegation in the motion to dismiss. It seems that the foreclosure sale which plaintiff sought to restrain has become a fait accompli.

Appeal dismissed.