The statute regulating the manner of exercise of the power of sale in a deed of trust securing the payment of a debt is embodied in G.S. 45-28 as amended by Chapter 1013 of the 1947 Session Laws of North Carolina and reads as follows:
“In the foreclosure of mortgages or deeds of trust on real estate, or by order of court in foreclosure proceedings either in the superior court or in actions at law, or in the case of the public sale of real estate by an executor, аdministrator, or administrator with the will annexed, or by any person by virtue of the power contained in a will or sale under execution duly issued, the sale shall not be deemеd to be closed under ten days. A report of such sale shall be filed in the office of the clerk of the superior court within five days from the date thereof: Providеd, that failure to file such report prescribed shall not invalidate said sale. If. within ten days from the date of the sale in a foreclosure proceeding or within tеn days from the date of the filing of a report of sale in a judicial proceeding, the sale price is increased ten per cent where the price does not exceed one thousand dollars ($1,000.00) and in addition thereto five per cent on the amount of said increased bid in excess of one thousand dollаrs ($1,000.00) and the same is paid to the clerk of the superior court, the *416 mortgagee, trustee, executor, or person, offering the real estate for sale shall reopen the sale of said property and advertise the same in the same manner as in the first instance. It shall only be necessary to give fifteen days’ notiсe of a resale. The clerk may, in his discretion, require the person making such advance bid to execute a good and sufficient bond in a sufficient amount to guarantee compliance with the terms of sale should the person offering the advance bid be declared the purchaser at the resale. Where thе bid or offer is raised as prescribed herein, and the amount paid to the clerk, he shall issue an order to the mortgagee or other person and require him tо advertise and resell said real estate. Resales may be had as often as the bid may be raised in compliance with this section. Upon the final sale of the real estate, the clerk shall issue his order to the mortgagee or other person, and require him to make title to the purchaser. If upon any resale thе person making an advance bid or his agent shall become the last and highest bidder at such resale and upon confirmation of his bid shall fail to comply therewith within ten days, the clerk shall order a resale of the property; and in such event the deposit made with the clerk of said court shall be forfeited as damages fоr failure to comply with the bid at such resale and shall be applied, under order of the clerk, first to the payment of all costs and expenses in advertising and conducting the resale, and the balance of said deposit, if any, shall be applied as a credit on the' indebtedness on account of which the sale was authorized: Provided, however, that no such forfeiture shall be allowed if, at the resale ordered because of such failure to comply, the property shall sell for an amount equal to or more than said advance bid so offered but not complied with, plus the costs of such resale. The clerk shall make all such orders as may be just and necessary to safeguard the interest of all parties, and he shall keep a record which will show in detail the amount of each bid, the purchase price, and the final settlement between the parties. This section shall not apply to the foreclosure of mortgages or deeds of trust еxecuted prior to April first, nineteen hundred and fifteen.”
Both equity and law permit the grantor in a deed of trust to purchase at the foreclosure sale of his own property by the trustee. 59 C.J.S., Mortgages, section 577;
Wilson v. Vreeland,
Consequently, it is plain that the acts of the respondent, Van B. Sharpe, in the premises have been done in the exercise of clear legal rights, and have caused third persons to increase by $8,130 their offers for the property covered by the deed of trust being foreclosed. Furthermore, it is clear that no legаl wrong has been inflicted upon the petitioner or the beneficiary of the deed of trust. Certainly they have no right to ask that *417 the deed of trust should be foreclosed otherwise than in the manner and at the time appointed by law.
Nevertheless, the orders entered below undertake to deprive the respondents of substantial legal rights given them by legislative enactment upon the supposition that acts lawful in themselves become illegal merely because of the absence of a commendable motive on the part of the person doing the acts. This theory is insupportable. While mischievous motives may make a bad case worse, they cannot make that wrong which in its own essence is lawful. 52 Am. Jur., Torts, section 5 ;
Bell v. Banzer,
When the pertinent statute is analyzed, it becomes manifest that the Legislature has aptly declared it obligatory for a trustee selling real estate under a power of sale in a deed of trust for the satisfaction of a debt secured thereby to mаke resale of the property covered by the deed whenever “the bid or offer is raised as prescribed” by the statute and the amount of the increasе in the bid or offer is paid to the Clerk of the Superior Court. It inevitably follows that the provision in the order of the Clerk of the Superior Court of Moore County requiring any рerson hereafter placing an advanced bid on the real property in question to deposit with such clerk “cash or certified or cashier’s cheсk in the amount of fifteen per cent of the last and highest bid” runs counter to the legislative will by attempting to exact from any person desirous of making an advanced bid as a prerequisite to a resale of the property a deposit or payment in excess of that specified by the statute. Moreover, the provision of the order in issue requiring the last and highest bidder at any future resale of the property to deposit with the Clerk “cash or certified or cashier’s check in thе amount of fifteen per cent” of his bid is void under the decision of this Court in
Alexander v. Boyd,
The order of the Clerk оf the Superior Court of Moore County finds no warrant in the statutory provision that “the clerk shall make all such orders as may be just and necessary to safeguard the intеrest of all parties.” This authorization extends to orders securing the rights of the parties as defined by the statute, but not to orders abrogating or abridging such rights. Moreover, the conclusion that the clerk cannot require an advanced bid in excess of that prescribed by the statute finds support in the legislative declaration that “the clerk may, in his discretion, require the person making such advance bid to execute a good and sufficient bond in a sufficient amount to guarantee compliance with the terms of sale *418 should the person offering the advance bid be declared the purchaser at the resale.” Expressio unius est exclusio alterius.
The order of the Clerk of the Superior Court is void for it undertakes to deprive the respondents of rights granted them by the Legislature. Since an appeal from a void order cannot be frivolous, the order of the Judge dismissing the appeal must be Reversed.