Barbee v. Edwards

77 S.E.2d 646 (1953) 238 N.C. 215

BARBEE
v.
EDWARDS.

No. 740.

Supreme Court of North Carolina.

September 23, 1953.

W. J. Brogden, Jr., and Blackwell M. Brogden, Durham, for plaintiff, appellant.

Spears & Hall, Durham, for defendant, appellee.

JOHNSTON, Justice.

The general rule is that where a mortgage or deed of trust is given to secure a specific debt, payment of the debt extinguishes the power of sale and terminates the title of the mortgagee or trustee, and all outstanding interests in the land revert immediately to the mortgagor by operation of law. Crook v. Warren, 212 N.C. 93, 192 S.E. 684; Saleeby v. Brown, 190 N.C. 138, 129 S.E. 424; Stevens v. Turlington, 186 N.C. 191, 119 S.E. 210, 32 A.L.R. 870; Walker v. Mebane, 90 N.C. 259; 59 C.J.S., Mortgages, § 550, page 887; 59 C.J.S., Mortgages, § 453, pages 708 and 709; 36 Am.Jur., Mortgages, Sec. 413, p. 894.

And ordinarily a sale conducted under the power after full payment of the debt is invalid and ineffectual to convey title to the purchaser. Crook v. Warren, supra; Fleming v. Barden, 126 N.C. 450, at page 457, 36 S.E. 17, 53 L.R.A. 316; 59 C.J.S., Mortgages, § 594, page 1024; 37 Am.Jur., Mortgages, Sec. 803; Annotations: 19 Am. St. Rep. 274; 92 Am. St. Rep. 597, 598. See also Layden v. Layden, 228 N.C. 5, 44 S.E.2d 340; Oliver v. Piner, 224 N.C. 215, 29 S.E.2d 690.

In the case at hand the plaintiff testified: "I paid to Mr. Lindsey all the money that I agreed to pay on the property." This testimony is sufficient, when considered with the rest of the evidence in the case, to justify, though not necessarily to impel, the inference that the debt secured by the deed of trust was fully paid before, rather than after, the trustee's deed was made to Lindsey in 1945. This by virtue of the presumption, shown by human experience, that in the ordinary course of affairs a rational person does not "lock the stable door after the steed is stolen." And if the debt was so paid, it necessarily follows that the trustee's deed made to Lindsey in 1945, more than seventeen years after the alleged foreclosure sale, is void. And on the record as presented the deed to Lindsey controls the validity of the subsequent deed made by Hiatt to the defendant under the doctrine of title by estoppel. Therefore, if the trustee's deed fails, so does the defendant's. And it is to remove these two deeds and put to rest the defendant's claim made thereunder, as an alleged cloud on the plaintiff's title, that this action is brought.

It necessarily follows that the plaintiff made out a prima facie case entitling him to go to the jury. See Combs v. Porter, 231 N.C. 585, 58 S.E.2d 100, and cases cited.

In this view of the case we do not reach for decision the question whether, conceding that the plaintiff was in default at the times when the foreclosure sale and the trustee's deed were made, his surrender of possession to Weaver tolled the statute of limitations against foreclosure so as to give legal validity to the trustee's deed made some seventeen years after the foreclosure sale. See Ownbey v. Parkway Properties, 222 N.C. 54, 21 S.E.2d 900; Crews v. Crews, 192 N.C. 679, 135 S.E. 784; Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578.

We have given consideration to the other pleas of limitation set up by the defendant under various statutes, but conclude that on this record none of them may be invoked at the nonsuit level to defeat the plaintiff's prima facie case.

In reaching this conclusion we have not overlooked the rule which obtains with us that, except when a statute is relied upon to confer title to land where the defendant must make good his asserted title to defeat the plaintiff's title when proved, Blue Ridge Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862, where the statute of limitations is properly pleaded, the burden of proof is upon the plaintiff to show that his claim is not barred. The rationale of this rule is that when the statute is pleaded, it is then incumbent upon the plaintiff to show he has not brought to court a stale claim. Muse v. Muse, 236 N.C. 182, 72 S.E.2d 431; Rankin v. Oates, 183 N.C. 517, 112 S.E. 32; Pinnix v. Smithdeal, 182 N.C. 410, 109 S.E. 265; Tillery v. Whiteville Lumber Co., 172 N.C. 296, 90 S.E. 196.

In the light of the foregoing principles we discuss the statutes relied on by the defendant.

As to his plea of title by adverse possession under color for seven years, G.S. § 1-38, it is enough to say that this plea raised an issue of fact for the jury, with the burden of the issue being on the defendant. McCracken v. Clark, 235 N.C. 186, 69 S.E.2d 184; Blue Ridge Land Co. v. Floyd, supra.

It may be conceded that the plaintiff's admission that he gave Weaver possession of the premises in 1934 and has been out of possession since that time amounts to substantial proof tending to support the defendant's claim of title by adverse possession. But even so, the record is silent in respect to the duration of Weaver's possession, and there is no testimony whatsoever that either the defendant or his grantor Hiatt ever had possession. Moreover, there is no evidence in respect to the nature or character of Weaver's acts of possession or user of the land. As to this, the plaintiff merely said: "I have not been in possession of that land since that time (1934). Mr. Cooper Weaver has been in possession of it." It is elemental that mere possession does not necessarily amount to adverse possession in law. Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851; Cox v. Ward, 107 N.C. 507, 12 S.E. 379; Williams v. Wallace, 78 N.C. 354. Thus the record fails to show either the character of user or the duration of possession or the continuity of possession necessary to ripen title under the seven year statute. The presumptions do not supply these deficiencies to the point of justifying affirmance of the nonsuit under application of the doctrine of harmless error on the theory that the right result was reached, as applied in Rankin v. Oates, supra, and cases there cited. Here the evidence is wholly inconclusive on the issue of adverse possession. See Price v. Whisnant, supra; Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235.

Next, it is noted that the defendant sets up and relies on (1) the statute limiting the period of redemption by a mortgagor to ten years where the mortgagee has been in possession, G.S. § 1-47(4), and (2) the ten-year residuary statute, G.S. § 1-56, which by its terms applies only to actions for relief not specifically enumerated in other statutes of limitation. Woodlief v. Wester, supra, 136 N.C. 162, 48 S.E. 578.

In the outset it is to be noted that on the record as presented the plaintiff's action is not one to redeem. Rather, it is an action to quiet title under the Jacob Battle Act, Ch. 6, P.L.1893, now codified as G.S. § 41-10. Under this Act, the plaintiff is not required to show that he is either in or out of possession. Vick v. Winslow, 209 N.C. 540, 183 S.E. 750; Satterwhite v. Gallagher, 173 N.C. 525, 92 S.E. 369. Nor is the plaintiff required to show that the defendant is an occupant or any more than a claimant of the land in controversy. Wells v. Clayton, 236 N.C. 102, 107, 72 S.E.2d 16; Duncan v. Hall, 117 N.C. 443, 23 S.E. 362.

Here the plaintiff neither alleges nor attempts to prove that the defendant is in possession. The defendant's possession, if any there be, is left for the defendant to prove under his special pleas. The plaintiff asks nothing by way of accounting and redemption. He alleges that the adverse claim of the defendant is "based solely" upon the deed made to him by Hiatt dated 4 April, 1952, as bottomed upon the alleged activating foreclosure deed made by the trustee to C. L. Lindsey, 31 May, 1945. The gravamen of the plaintiff's cause of action is that there was no valid foreclosure of the deed of trust or effective conveyance by the trustee; that until the trustee's deed was put to record in 1945, the plaintiff held clear, unmistakable record title. He proceeds upon the theory that he was not menaced to the point of being exposed to the running of limitations (except perhaps G.S. § 1-39) until the defendant's claim arose under the activating effect of the trustee's deed. He brings this action in 1952, within ten years after the execution of that deed. He does not join as defendant either Hiatt, Weaver, or Lindsey. He only sues Edwards, who purchased from Hiatt in 1952. The question of the sufficiency of the plaintiff's pleadings is not challenged. See Wells v. Clayton, supra; Ricks v. Brooks, 179 N.C. 204, 102 S.E. 207.

The fact that the plaintiff brings this action under the Battle Act, G.S. § 41-10, deprives the defendant of no right. He has the right to defend the validity of his alleged title on every relevant ground available in any type of action involving recovery or possession of real property. However, the setting up of such defenses does not perforce change the fundamental character of the plaintiff's main action as charted by him, nor may the plaintiff's evidence which tends in part to support one or more of the defenses set up by the defendant be construed as dissolving or diluting the plaintiff's prima facie proofs to the point of justifying nonsuit at the close of his evidence. It is the function of the jury, and not the court, to resolve the discrepancies and dispose of the contradictions in the evidence. Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864.

As to the plea that the plaintiff has not been in possession within twenty years next prior to the commencement of the action, it may be doubted that this plea shifted to the plaintiff the burden of showing he had been in actual possession within the statutory period. This for the reason that on showing of title under the common source deed from Lindsey to him in 1917, followed by prima facie proof that the foreclosure deed is void because of prior payment of the debt secured by the deed of trust, he had the benefit of the presumption created by G.S. § 1-42, under which one who establishes legal title to the locus in quo is presumed to have been possessed thereof within the twenty-year period limited by G.S. § 1-39. The two statutes, G.S. § 1-39 and G.S. § 1-42, are construed together. Conkey v. John L. Roper Lumber Co., 126 N.C. 499, 36 S.E. 42. But be this as it may, the record indicates that the plaintiff met all the requirements of G.S. § 1-39 when he offered the deed made to him by Lindsey in 1917 and testified he held under it and farmed the land from year to year until 1934 or 1935. The action was brought in 1952. Hence he has shown possession within the twenty-year period limited by G.S. § 1-39. Conkey v. John L. Roper Lumber Co., supra.

In this state of the record, for the reasons given, the plaintiff's action survives the motion for nonsuit when tested by the various statutes of limitation set up and relied on by the defendant.

And it is manifest from what we have said that the pleas of estoppel and laches are unavailing to justify the nonsuit below.

We make no intimation respecting the ultimate merits of the case. But upon the record as presented, with the defendant's defenses undeveloped and in repose, it appears that the plaintiff has made out a prima facie case. The judgment below is

Reversed.