26 S.E. 919 | N.C. | 1897
In 1883 the defendant Hill executed his note and mortgage to the plaintiff Hussey, and in 1884 he executed a note and second mortgage on the same land to the plaintiff Stanford. After this, and while the plaintiff Hussey was the holder and owner of the first note and mortgage, the plaintiff Stanford sold and assigned his note (315) and mortgage to the plaintiff Hussey. That after the plaintiff Hussey had become the assignee of the Stanford note and mortgage, he sold and assigned the note and mortgage given to him in 1883, to one W. L. Hill. That said Hill, the assignee of the plaintiff Hussey, under the power and sale contained in the mortgage which he supposed authorized him to do so, sold the mortgaged land to the highest bidder, having first advertised the same for the length of time prescribed in the mortgage, when one J. S. Wilson became the purchaser — paid the purchase money and took a deed from said Hill. That after Wilson's occupying the land for about one year, he sold the same to the defendant Friday Hill, the mortgagor, and made him a deed in fee with warranty.
This presents the case on appeal, and when it was before us at the last term of this court we were of the opinion that the question of defendant's title, derived from Wilson, was not presented, and the case went off on a question of pleadings, in which this question was not considered.
But since the opinion in this case was filed, the opinion of the court in Wagon Co. v. Byrd,
The first ground assigned in the petition is not tenable and is not true in fact. The 2d 3rd and 4th assignments appear to be substantially the same, and state the grounds upon which the rehearing was granted. But it is not necessary to consider these assignments specifically, as the merits of the case were not passed upon in the former opinion, and we treat the case de novo. (316)
The note to the plaintiff Hussey was the evidence of the debt from defendant to him, and the mortgage was security for its payment. It was the same as to the note and mortgage from defendant Hill to the plaintiff Stanford.
A mortgagee is the legal owner of the property which he holds in trust for the payment of the debt, and then for the mortgagor. Parker v. Beasley,
But when he sold the note to W. L. Hill and assigned the note and mortgage to him, the latter only became the equitable owner — the naked legal estate still remaining in the plaintiff Hussey.
This assignment to W. L. Hill did not carry with it the power of sale, and he only having the equitable estate in the land could not convey the legal estate. 2 Jones Mortgages, section 1992; Williams v. Teachey,
This being so, the sale of W. L. Hill to Wilson and the sale of Wilson to the defendant Friday Hill were only equitable assignments of the note and mortgage from the defendant Friday Hill to the plaintiff Hussey.
This equitable assignment would have authorized W. L. Hill or J. S. Wilson to have compelled a foreclosure and sale through an order of court and a commissioner.
But this is not the case with the defendant Friday Hill. He has no equity. When he purchased the note, or the equitable interest in the note — his own note — it was not an assignment to him, but a satisfaction. He could not ask a court of equity to sell his land to pay his debt. Upon Friday Hill becoming the owner, the equitable owner of (317) the note, it was in law discharged, and this left the land subject to the second mortgage.
It was contended that, as Hussey became the assignee of the second mortgage before he sold the first note and mortgage to W. L. Hill, he was estopped to enforce the Stanford (second) mortgage. But we have *218 re-examined this question and can see no elements of estoppel in it. In the first place, both mortgages were on record, and it is not alleged that Hussey said anything to Hill calculated to deceive him. If Hussey had sold Hill the second mortgage, without saying anything to him about the first mortgage, there might have been some ground for complaint. But how there can be, when he sold the first mortgage which was a prior lien to the Stanford mortgage, we cannot see. The Stanford mortgage did not stand in the way of the Hussey mortgage, and the assignee got all he could have gotten, whether Hussey or Stanford was the owner of the second mortgage.
The question as to whether the warranty of the defendant Friday Hill in the Stanford mortgage estopped him from asserting title to the land under the Wilson deed, was learnedly discussed by the defendant's counsel. But it will be seen, from what we have said, that this question has no bearing on the decision of the case.
The usual practice is to dismiss the petition to rehear where the judgment in the former opinion is not reversed. But as the former opinion was not put upon the merits of the case, we will not discuss the petition in this case, but affirm the judgment of the court below.
Affirmed.
Cited: Tyler v. Capeheart,
(318)