Citation Numbers: 154 S.E. 18, 199 N.C. 122, 1930 N.C. LEXIS 67
Judges: BROGDEN, J.
Filed Date: 7/2/1930
Status: Precedential
Modified Date: 4/15/2017
CLARKSON, J., dissenting.
From judgment rendered in this cause the defendants appealed to the Supreme Court, and the opinion of the Court is reported in
Thereafter, in apt time, the plaintiffs filed a petition to rehear. The petition was granted and additional briefs were filed by the parties, and the cause is now before us for decision.
This same cause was considered by this Court and opinions rendered and reported in
From time immemorial it has been held by the courts that the law looks upon a mortgagor with a kindly eye, and this legal beneficence has grown into a maxim "that once a mortgage always a mortgage." Ray v. Patterson,
In the case at bar, the ancestor of plaintiffs executed a mortgage providing for the exercise of power of sale "upon written notice to the party of the first part for thirty days that prompt payment is expected and upon default thereof sale will be made under the power of this mortgage," etc. The jury found in response to the first issue that the mortgagee failed to give written notice for thirty days that prompt payment was expected. Therefore, the sale was not properly made and the equity of redemption was not extinguished, for "in an instrument of this kind the law is that a statutory requirement or contract stipulation in regard to notice is of the substance, and unless complied with a sale is ineffective as a foreclosure, and even when consummated by deed the conveyance only operates to pass the legal title, subject to certain equitable rights in the purchaser, as of subrogation, etc., in case he has paid the purchase money in good faith." Brett v. Davenport,
The opinion of the Court in
In the Russell case, supra, it appeared without question that the land was properly sold and brought a fair price, and that every dollar of the purchase money was applied to the payment of debts of decedent.
These cases, therefore, hold that if the power of sale is properly exercised, the equity of redemption is properly extinguished, and hence, in order to set aside a conveyance upon the ground of fraud because it was purchased by a person acting in a fiduciary relation, injury must be shown, and in such event, if no injury is shown, the conveyance will not be set aside.
However, the case at bar presents both aspects of the legal question, because the jury has found that the power of sale was not properly exercised, and that the sale was invalid from the beginning. Indeed, the proposition that the insolvency of the estate of the mortgagor precluded the exercise of the right of redemption was considered by this Court inRich v. Morisey,
In the case at bar the report of the administrator clearly showed insolvency, and thus the Rich case is positive authority that mere insolvency of the estate will not preclude the heirs at law of the mortgagor from asserting the right of redemption where the sale of the land was not properly made.
After careful examination, we are of the opinion that the decision in
The decision of the Court reported in
There are many exceptions in the record, and we have given earnest and careful consideration to the records, the briefs, the petition to rehear, and the additional briefs filed by the parties, and have come to the conclusion that the judgment rendered at the April Term, 1928, of Perquimans Superior Court ought to be upheld and affirmed, and it is so ordered.
Petition allowed.
Brett v. . Davenport , 151 N.C. 56 ( 1909 )
Ray v. . Patterson , 170 N.C. 226 ( 1915 )
Ray v. Hill Veneer Co. , 188 N.C. 414 ( 1924 )
Morris v. . Carroll , 171 N.C. 761 ( 1916 )
Eubanks v. . Becton , 158 N.C. 231 ( 1912 )
Jessup v. . Nixon , 196 N.C. 33 ( 1928 )
Newbern v. Western Union Telegraph Co. , 196 N.C. 14 ( 1928 )
Jessup v. . Nixon , 186 N.C. 100 ( 1923 )
School Directors v. . Asheville , 137 N.C. 503 ( 1905 )
M. P. Hubbard Co. v. Brown , 186 N.C. 96 ( 1923 )
Highsmith v. . Whitehurst , 120 N.C. 123 ( 1897 )
Russell v. . Roberts , 121 N.C. 322 ( 1897 )
Winston Brick Manufacturing Co. v. Hodgins , 192 N.C. 577 ( 1926 )