53 S.E. 850 | N.C. | 1906
The court submitted the usual issues in ejectment, and, as stated in the record, "plaintiff moved for judgment upon the whole evidence." His Honor granted judgment. We assume from this that his Honor instructed the jury that upon the whole evidence, if believed to be true, to answer the issues for plaintiff.
The land in controversy belonged to W. W. and J. L. Ashburn as tenants in common. They mortgaged it to E. S. Dickerson. On 9 September, 1902, W. W. Ashburn conveyed his equity of redemption to defendant. On 13 December, 1902, E. S. Dickerson by his agent, W. L. Reece, sold the land under the mortgage, and (327) defendant bid it off for $260. The mortgagee, E. S. Dickerson, refused to execute the deed to defendant and repudiated the sale, and again sold the land under the mortgage on 22 April, 1903, when it was bid off by and deed made to plaintiff.
1. We are of opinion that defendant acquired no enforcible right as the successful bidder at the sale of 13 December, 1902, made by Reece for the mortgagee, inasmuch as the statute of frauds is set up as a bar. No memorandum of the sale whatever was made by the agent, and consequently none was signed. In order to charge a party upon such a contract it must appear that there is a writing containing expressly or by implication the material terms, and it must be signed by such party or his agent lawfully authorized. The only memorandum relied upon by the defendant is a blank deed in the ordinary form, prepared by Reece at his office after the sale, a distance of one hundred yards away, and is not signed by E. S. Dickerson, or any one else as his agent, and in no way refers to the printed advertisement. That this is not a compliance with the statute is plain to us and in accord with the authorities. *268 Hall v. Misenheimer,
It is not contended that there was any note or memorandum made on the printed advertisement, or any writing whatever signed by the mortgagee or his agent, showing who bought the land, price paid, or terms of sale. The advertisement is only an offer by the seller to sell. The auctioneer is the agent of the plaintiff to sell, and the law constituted him the defendant's agent, when he became the last and highest bidder, to complete the sale by meeting the requirements of the statute. This the auctioneer may do by entering the amount bid on the advertisement and signing thereon the purchaser's name. Proctor v. Finely
(328)
2. It is in evidence that shortly after the sale of 13 December, 1902, the defendant duly and unconditionally tendered to E. S. Dickerson, the mortgagee, the full amount on the mortgage debt, some $416.50, which Dickerson refused to accept. There is also evidence tending to prove that defendant gave due notice of this tender at the sale in April, and forbade the selling of the land, and it is contended, therefore, that plaintiff had knowledge of defendant's equity. In his answer defendant avers that the sale to plaintiff, the son of the mortgagee, was a sham; that he was not abona fide purchaser for value, and that he had due notice of defendant's rights; that defendant has kept his tender good by being able, ready, and willing to pay said mortgage debt at any time, and defendant prays that he be allowed to redeem the land by paying the debt. As a tenant in common of the equity of redemption, the defendant has the same right to redeem that his grantor had and the *269
right to pay the mortgage and have it canceled. Boone on Mortgages, (329) p. 49; 25 A. E. (1 Ed.), 288. This brings us to consider the effect of the alleged tender. It is well settled and universally held that an unconditional tender on the day when the mortgage debt falls due, called the law day, discharges the lien of the mortgage, although the debt survives as a personal liability. 20 A. E. (2 Ed.), 1062, and cases cited; Shields v. Lazear,
It is unnecessary, in view of the allegations of the answer and the evidence of the defendant, to decide what effect a previous tender has upon the title when the purchaser buys in good faith, for value and without notice. This defendant alleges and testifies that he gave due notice at the sale and, further, that plaintiff is not a bona fide purchaser for value. It may become necessary to determine the question if the jury find such allegations against the defendant. His Honor erred in not submitting proper issues to the jury, to the end (331) that these controverted facts might be determined.
We think the following issues substantially are necessary to be determined by the jury, viz.:
1. Did defendant tender to E. S. Dickerson the full amount due on the mortgage debt prior to the sale to plaintiff, as alleged in the answer?
2. If so, did plaintiff have notice thereof at the time of his purchase?
3. Is plaintiff a bona fide purchaser for value?
4. Did defendant keep his tender good?
5. What is the yearly rental value of the land?
If the defendant contests the payment of interest since the tender, the date of the tender must be determined by the jury, unless the date is agreed upon. It may be well to say that the phrase, "keeping his tender good," does not mean that defendant must have paid the money into court. It seems that payment into court is only authorized or required when there is a statute requiring it or when there is a suit pending to redeem the land, and where the effect is to discharge the mortgage lien. But the debtor must be ready, able, and willing at all times to pay the debt. He may retain the money in his own possession, but the identical money need not be kept on hand, and if, by making *271 use of the money, he is not ready to pay the debt in current money at any time when requested, the effect of the tender is destroyed. 28 A. E. (2 Ed.), 40.
New trial.
WALKER, J., concurs in result.
Cited: Lee v. Manley,
(332)
