Pendergrast v. Home Mortgage Co.

This is an action to have a deed executed by the defendant, Jefferson E. Owens, Trustee, to the defendant North Carolina Mortgage Corporation declared void, and for other relief.

A deed of trust executed by the plaintiff to the First National Bank of Durham, Trustee, on 15 April, 1929, to secure a loan made to the plaintiff by the defendant, The Home Mortgage Company, was duly foreclosed by a sale of the land conveyed by said deed of trust by the said First National Bank of Durham, Trustee, on 7 November, 1931.

Before it had executed a deed to the defendant, North Carolina Mortgage Corporation, the purchaser at said sale, the First National Bank of Durham, ceased to do business because of its insolvency.

On 22 January, 1932, the defendant Jefferson E. Owens was duly appointed substitute trustee in the deed of trust from the plaintiff to the First National Bank of Durham, Trustee, and accepted said appointment. Thereafter the defendant North Carolina Mortgage Corporation duly complied with its purchase of the land sold by the First National Bank of Durham, Trustee, on 7 November, 1931.

On 8 June, 1932, the defendant Jefferson E. Owens, Trustee, executed and delivered to the defendant North Carolina Mortgage Corporation, a deed conveying to the said corporation the land described in the deed of trust from the plaintiff to the First National Bank of Durham, Trustee.

On the foregoing facts, which were found by the referee to whom the action was referred for trial, it was ordered, considered, and adjudged by the court that the deed from the defendant Jefferson E. Owens, Trustee, to the defendant North Carolina Mortgage Corporation, is valid in all respects.

From the judgment, the plaintiff appealed to the Supreme Court, assigning error in the judgment. It is admitted by the plaintiff on his appeal to this Court, that the defendant Jefferson E. Owens was duly appointed substitute trustee in the deed of trust from the plaintiff to the First National Bank of Durham, and that the sale of the land conveyed by the deed of trust on 7 November, 1931, by the First National Bank of Durham, as Trustee, was regular in all respects.

The plaintiff contends, however, that the substitute trustee was without authority by reason of his appointment to execute a deed to the purchaser at the sale made by the original trustee. This contention cannot be sustained.

Under the provisions of the deed of trust which appear in the record, and under the provisions of the statute (chap. 78, Public Laws of N.C. 1931, N.C. Code of 1935, sec. 2583 [a]), the substitute trustee was authorized to complete the foreclosure of the deed of trust by the execution of a deed to the purchaser at the sale made by the original trustee, upon his compliance with his bid. See N.C. Mort. Corp. v. Morgan,208 N.C. 743; 182 S.E. 450.

There is no error in the judgment.

Affirmed.